1). Certain Services require the purchase of a subscription in order to access all or part of such services for the period of time set out on the order form for the Services (each, a “Subscription Term”). Except if otherwise stated in the applicable order form, subscription fees are non-refundable and may change at the end of a Subscription Term. All taxes levied in connection with use of the Services, as well as any credit card company or other bank fees whatsoever imposed in connection with payment subscription fees, are the sole responsibility of and are payable by Customer. All monetary amounts referenced in or in connection with this Agreement shall be in United States currency (“USD”).
2). Customer agrees that, in the event Azuga is unable to collect subscription fees owed by Customer to Azuga for the Services, Azuga may take the steps it deems necessary to collect such subscription fees and that Customer will be responsible for all costs and expenses incurred by Azuga in connection with such collection activity, including reasonable attorneys’ fees.
3). Customer shall ensure that its account information is and will always be complete, accurate and up-to-date. Customer should ensure that their account password or log-in credentials are kept confidential at all times and is solely responsible to Azuga for all activity that occurs via its account. If Customer becomes aware of any unauthorized use of its account or account information, or any other breach of security, it agrees to immediately notify Azuga and Azuga, in its sole discretion, may require changes to Customer’s account information at any time for any reason.
4). Customer agrees not to access or attempt to access the Website or use the Services by any means other than the interface provided by Azuga or circumvent any access or use restrictions put into place to prevent certain uses of the Products, Website, Materials and Services.
5). Contract length and Early Termination Fees (ETF):
6). Contract Renewal: Each Subscription Term will automatically renew for the original term of the period of upon its expiration unless either party provides notice of intent not to renew in writing prior to 60 days before the end of the then current Subscription Term. For example, a customer that signs up on Jan 1 2018 for a 3 year period will be automatically renewed for a further 3 years on Jan 1 2021.
7). Late Fees: Interest at the rate of one and one-half percent (1 1/2%) per month (or the highest rate permitted by law, if such rate exceeds the highest rate permitted by law) to compensate Azuga for the extra administrative expenses incurred by it.
8). Data overage fees: For Azuga Elogs product(s) and Azuga Dashcam, any overages will be the responsibility of the customer and will be billed accordingly on a monthly basis.
1). Customer agrees to be bound by any affirmation, assent, or agreement transmitted through the Website, including but not limited to any consent given to receive communications from Azuga solely through electronic transmission, and agrees that by clicking on an “I Agree”, “I Consent” or other similarly-worded button or entry field by mouse, keystroke or other computer device, such agreement or consent will be legally binding and enforceable and the legal equivalent of a handwritten signature delivered by or on behalf of Customer. Customer may not use the Products, Website, Materials, Services or any one of more of them if otherwise prohibited by law or if Customer is not fully able and competent or otherwise lacks the capacity to enter into this Agreement. Customer affirms that it has the capacity and legal authority to enter into this Agreement and that the individual executing and delivering this Agreement on behalf of Customer is duly authorized to do so and to bind Customer hereto.
2). All right, title, interest and ownership whatsoever in and to the Products, Website, Materials and Services, including improvements, modifications and enhancements thereto, in all languages, formats and media throughout the world, are and will continue to be the exclusive property of Azuga and/or its licensors and nothing herein shall be construed to confer any license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to Customer or any third party. All trademarks relative to the Products, Website, Materials and Services are the property of Azuga or other rights holders and may not be used without the prior consent of Azuga or the rights holder. “Azuga”, “DataLogger”, “G2” and all derivations and logos thereof, respectively, are trademarks of Azuga.
3). Customer shall not: (i) modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Products, Website, Materials and/or Services to human perceivable form, or attempt to discover the underlying algorithms or techniques except to the extent that such activities may not be prohibited by law; (ii) copy or create derivative works of the Products, Website, Materials and Services, respectively; (iii) distribute or otherwise permit or facilitate the use of the Products, Website, Materials and Services by or on behalf of any third party; or (iv) without the express written consent of Azuga, disclose or divulge to any third party confidential access codes and other information provided to Customer solely for Customer’s own use of the Products, Website, Materials and Services.
4). Customer is solely responsible for payment of any and all third-party fees required to use the Product and to access the Website (such as telephone toll charges, mobile carrier fees, ISP, data plan, etc.). Further, Customer assumes responsibility for and agrees to pay any and all taxes of any kind whatsoever charged, levied and/or payable, now or in the future, in connection with the use of the Product, Website, Materials and Services hereunder.
5). Customer agrees that Azuga may modify or discontinue, temporarily or permanently, the Products, Website, Materials or the Services, or any portion thereof, with or without notice. Azuga may automatically download and install updates designed to improve, enhance and further develop the Products, Website, Materials or Services and may take the form of bug fixes, enhanced functions, modified or new software modules or completely new versions. Customer agrees to receive such updates and permits Azuga to deliver these with or without notice as part of this Agreement.
6). Although Azuga does not generally monitor Customer activity in connection with the Services, if Azuga becomes aware of any possible violations of any provision of this Agreement, Azuga reserves the right to investigate such violations, and Azuga may, at its sole discretion, take any such action as it may deem necessary or advisable under the circumstances, including to discontinue, suspend, terminate or block Customer’s (or any user’s) use of Product and/or access to the Website and the Services, to change, alter, or remove Content or account information, in whole or in part, without prior notice. If, as a result of such investigation, Azuga believes that criminal activity has occurred, Azuga reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, Azuga is entitled to retain and/or disclose any information, including Content or account information (or elements thereof), in Azuga’s possession in connection with the use of the Services to (i) comply with applicable law, legal process, or governmental request; (ii) enforce this Agreement; (iii) respond to any claims that Customer has violated the rights of third parties; or (iv) protect the rights, property or personal safety of Azuga, its users or third parties, including the public at large, as Azuga in its sole discretion believes to be necessary or appropriate.
7). Without limiting its other remedies, Azuga reserves the right to discontinue, suspend, terminate or block Customer’s (or any user’s) use of Product and/or access to the Website and the Services upon any breach of this Agreement by Customer at any time, in its sole discretion or in the event that Customer makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium. During any such cessation of services, Azuga shall be relieved of all performance obligations hereunder until all outstanding invoices are fully paid. Any such suspension by Azuga shall extend any deadlines for performance by Azuga of its duties and obligations for a time period equal to the time elapsed from the date Azuga suspends performance to the date Azuga receives full payment for all outstanding invoices. Termination for non-payment by Customer of fees due hereunder is in addition and without prejudice to Azuga’s right to the outstanding amount owed plus interest on amounts not fully paid within thirty (30) days after Customer’s receipt of Azuga’s invoice. A termination of this Agreement shall not limit Azuga from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all amounts owing, or yet to be paid, under or pursuant to this Agreement, and this provision shall survive any termination hereof.
8). Following any termination of this Agreement, Azuga shall have no obligation to maintain any Customer data and shall not be liable to Customer for any Customer data being expunged following any such termination hereof.
9). Customer will not hold Azuga liable for any delays caused by any occurrence beyond Azuga’s control, including any acts of God or nature or any acts or omissions of Customer and its employees and contractors.
10). AZUGA’S TOTAL LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES CUSTOMER ACTUALLY PAID TO AZUGA DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD. IN NO EVENT SHALL AZUGA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY PUNITIVE, EXEMPLARY OR STATUTORY DAMAGES, DIMINUTION IN VALUE, OR ANY DAMAGES BASED ON ANY LEGAL THEORY (INCLUDING THEORIES OF TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE), INCLUDING DAMAGES FOR LOSS OF PROFITS, LOST REVENUE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR AZUGA HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR WHETHER OR NOT THE SAME ARE FORESEEABLE. FURTHER, AS SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, THE LIMITATIONS AND EXCLUSIONS IN THIS AGREEMENT MAY NOT APPLY AND, IN SUCH EVENT, ARE INTENDED TO APPLY TO ONLY THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
11). BYOD (BRING YOUR OWN DEVICE) DISCLOSURE:
FOR SITUATIONS WHERE CUSTOMER DECIDES TO BRING THEIR OWN HARDWARE AND UNDERLYING WIRELESS SERVICE, AZUGA HAS NO CONTROL OVER THE PERFORMANCE OF THE DEVICE, TAMPERING BY END USERS, AND ABILITY TO TROUBLESHOOT WIRELESS SERVICE PROBLEMS AS NO CONTRACTUAL RELATIONSHIP EXISTS WITH THE UNDERLYING WIRELESS CARRIER.
12). WIRELESS CARRIER DISCLOSURE: CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CUSTOMER AND UNDERLYING WIRELESS CARRIER. CUSTOMER UNDERSTANDS AND AGREES THAT THE UNDERLYING WIRELESS CARRIER HAS NO LIABILITY OF ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS 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 CUSTOMER’S USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING WIRELESS CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. CUSTOMER HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. CUSTOMER UNDERSTANDS THAT CUSTOMER AND THE UNDERLYING WIRELESS 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. THE CUSTOMER MAY NOT RESELL THE SERVICE TO ANY OTHER PARTY.
13). System Limitations: The Product has limitations including, but not limited to, the following: Azuga Elogs will not function in countries outside of the United States, except Canada, when trucks are operating South of the 60th Parallel.
14). Customer Duties and Responsibilities: It is your responsibility to make sure your Commercial Vehicle and your Electronic Logging System are working. When you use the Products, you acknowledge:
15). Customer agrees to indemnify, defend and hold Azuga, its officers, directors, employees, and agents harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to reasonable attorney’s fees, arising out of or related in any way to (i) Customer’s breach of this Agreement and (ii) acts or omissions of Customer or its employees within the scope of this Agreement, (iii) use or misuse of or inability to use the Website or violation of any law or regulation, proprietary, intellectual property, or privacy right in connection therewith. Azuga shall provide Customer with prompt written notice of any claims and provide Customer with reasonable assistance, at Customer’s expense, in the defense of said claims.
16). This Agreement shall be governed by the laws of the State of California, without reference to provisions on conflicts of laws, and the parties agree to submit to the personal and exclusive jurisdiction of the state or federal courts located within Santa Clara County, California for any disputes with Azuga arising out of this agreement. Any action with respect to this Agreement must be commenced by Customer within one (1) year after the claim or cause of action arises. Customer acknowledges that Customer has read this Agreement and understands and agrees to be bound by its terms. Customer further agrees that this Agreement may be updated from time to time by Azuga by posting an updated Agreement at https://www.azuga.com/EULA/.The currently effective Agreement between the parties shall be the most recent agreement posted on the Azuga website at https://www.azuga.com/EULA/. Azuga recommends that Customer print out a copy of this Agreement for their records. Should Customer have any questions concerning this Agreement, Customer may contact Azuga by writing to Azuga, Inc., 2570 North 1st Street, #200, San Jose California 95131.
17). If this Agreement is entered into on behalf of any unit or agency of the United States Government (the “Government”), the following provisions shall apply:1)The Government acknowledges Azuga’s representation that the Products, Website, Materials and Services and all related documentation were developed at private expense and no part thereof is in the public domain.
18). 2) The Government acknowledges Azuga’s representation that the Products and Services comprise Restricted Computer Software, as defined in Clause 52.227.19 of the Federal Acquisition Regulations (“FAR”), and Commercial Computer Software, as defined in Subpart 227.401 of the Department of Defense Federal Acquisition Regulation Supplement (“DFARS”). The Government agrees that:
19). In no event shall this Agreement be governed by the United Nations Convention on Contracts for Sale of Customer agrees and warrants that it shall adhere to the U.S. Export Administration Regulations, as the same may be amended from time to time.
20). Customer acknowledges that the Products, Website, Materials and Services are controlled, operated and administered by Azuga from its offices in the United States of America and India and that Azuga makes no representation that the Products, Website, Materials and/or Services are appropriate, accessible or available for use outside of the United States. Azuga reserves the right to block access to the Products, Website, Materials and Services by certain international users. If Customer uses the Product or accesses the Website from outside of the United States, Customer (or any user) will be solely responsible for compliance with all applicable laws and agrees to comply with all such laws.
21). A printed current version (as displayed on www.azuga.com) of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records and maintained in printed form.
22). If for any reason a court of competent jurisdiction finds any provision of this Agreement or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
23). Customer may not assign, sublicense, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement without the prior written consent of Azuga.
24). Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Azuga.
25). This Agreement shall not confer any rights or remedies upon any third party and shall inure to the benefit of, and be binding upon, the parties to this Agreement and their respective successors and assigns.
26). Customer acknowledges that Customer has read this Agreement and understands and agrees to be bound by its terms.
27). Customer agrees that this Agreement may be amended, revised and/or updated from time to time by Azuga by posting an updated Agreement at https://www.azuga.com/EULA/current All such changes will become effective upon the date first posted to the Website and it is Customer’s sole responsibility to review the most current terms and Azuga does not and will not assume any obligation to notify Customer of changes to this Agreement but may require Customer’s consent to any updated terms before further use of the Products, Website, Materials or Services is permitted. Customer’s continued use of the Products, Website, Materials and/or Services shall constitute Customer’s acknowledgement and acceptance of all such changes. The currently effective Agreement between the parties shall be the most recent agreement posted on the Azuga website at https://www.azuga.com/EULA Azuga recommends that Customer print out a copy of this Agreement for their records. Should Customer have any questions concerning this Agreement, Customer may contact Azuga by writing to Azuga, Inc., 2570 North First Street, Ste. 200, San Jose, California 95131.
1). ARS shall provide the following Per Member Per Month Services to Subscribers registered in the Azuga Fleet and/or Azuga Road Usage programs:
2). Winching-An eligible vehicle will be winched by a Service Provider when it can be safely serviced from a paved public road or paved private road if the service provider is able to gain access. Maximum distance for winching is 30 feet. Extraction of vehicles embedded in mud, water, snow or similar material is not a covered benefit. ARS will provide Services, as outlined above to any Subscriber, with up to three (3) Dispatches per VIN covered during any 12 month period, measured from the date of initial eligibility. Services are available only to those vehicles and Operators meeting the requirements stated in Section 2.2. ARS’s obligation is limited to the services specifically described above. For the purpose of determining the number of Dispatches used by and/or available to a Subscriber, per Eligible VIN, a Dispatch shall be defined as the dispatch of a single service vehicle to provide any of the Services described in paragraphs 2(a-f), above. A Dispatch may consist of one or more such Services, however if an additional service vehicle is required (for example, if a tow truck is required to assist a Subscriber who initially requested Flat Tire, Jump Start, Out of Gas or Lockout Assistance service), the tow truck shall count as an additional Dispatch.
3). ARS will use reasonable efforts to dispatch a Service Provider or out of network provider to all Subscribers in need of Services.
4). If a Service Provider is not available for dispatch for an extended period of time or when a Service Provider or out of network provider is unable to provide Services in remote areas, on restricted or private highways, during extreme weather conditions, or in areas where it would be hazardous for Service Provider’s vehicles to travel, ARS will advise the Subscriber of servicing options including an extended ETA, a scheduled service for later date, or Reimbursement Consideration. “Reimbursement Consideration” is defined as ARS’s option to reimburse a Subscriber for actual Service expenses up to eighty dollars ($80.00) when the Subscriber has first requested authorization from ARS to secure Emergency Roadside Assistance Services on his own.
5). Other users of a Subscriber’s Vehicle. Subject to the restrictions stated in Section 2.2, all users of the Vehicle containing the Subscriber’s Azuga Fleet Vehicle device shall be eligible to receive Services.
6). Services described in this document are not available to vehicles involved in an accident involving injury or vehicle damage.