Service Provider Terms and Conditions

1. OVERVIEW

These Service Provider Terms and Conditions (these “Terms”) constitute the agreement of Service Provider and Ecotrak with respect to Ecotrak’s provision of the Software Services to Service Provider.  These Terms shall be presented to Service Provider, and Service Provider shall acknowledge and agree to such Terms, in connection with (i) the applicable Customer’s onboarding of Service Provider to the Software Services and/or (ii) the applicable Customer’s approval of an invoice issued by Service Provider if the corresponding work order for such invoice is completed in the Software Services.  Terms not defined in the body of these Terms are defined as stated in Exhibit A.

2. SOFTWARE SERVICES

In consideration of Service Provider’s compliance with these Terms, Ecotrak will use reasonable efforts to make the Software Services available to Service Provider, but solely in accordance with these Terms and solely to use the Software Services for the benefit of Customer.

3. USE OF SOFTWARE SERVICES

• 3.1 Duration of Rights.  Service Provider acknowledges and agrees that it shall only have the right to use the Software Services for the duration of the subscription period provided for the in the applicable Customer’s Order Form.[1]

• 3.2  Service Provider Responsibilities.  Service Provider will: (a) be responsible for each User’s compliance with these Terms and liable for any User’s breach thereof; (b) comply with all laws applicable to the operation of, content on and data privacy and security related to Service Provider’s systems, including all privacy statement requirements; (c) prevent unauthorized access to, use of or reproduction of the Software Services, and notify Ecotrak promptly of any such unauthorized access, use or reproduction; (d) use the Software Services only as permitted in these Terms and in accordance with the Documentation and applicable laws; (e) advise its employees, agents and contractors who have access to the Software Services of the restrictions in these Terms; and (f) comply with terms of service of Non-Ecotrak Applications with which Service Provider uses the Software Services.

• 3.3  Usage Restrictions.  Service Provider will not: (a) make any Software Service available to or use any Software Service for the benefit of anyone other than Customer; (b) sell, resell, loan, license, sublicense, assign, transfer, distribute, rent or lease any Software Service, or include any Software Service in a service bureau or outsourcing offering, or otherwise make the Software Service available to any third party; (c) use a Software Service to store, post or transmit infringing, libelous, or otherwise unlawful, tortious, harassing, abusive, threatening, harmful, vulgar, invasive, obscene or otherwise objectionable material, or material that is harmful to minors in any way, or to store, post or transmit material in violation of third-party privacy rights or other rights; (d) use a Software Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Software Service or third-party data contained therein, or any servers or networks connected thereto, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to any Software Service or its related systems or networks, or other accounts, or computer systems or networks connected to the Software Service, through password mining or any other means; (g) permit direct or indirect access to or use of any Software Service in a way that circumvents a contractual usage limit; (h) modify, translate, copy or create derivative works of a Software Service or any part, feature, function or user interface thereof; (i) copy any part of the Software Service; (j) frame or mirror any part of any Software Service; (k) create any Internet hyperlink to the Software Service; (l) access or use any part of the Software Service in order to build a competitive product or service; (m) decompile, disassemble, reverse engineer or reduce to human-perceivable form any software included in the Software Service (but only to the extent such restriction is not prohibited by law); (n) remove or modify, or attempt to remove or modify, any proprietary notices on the Software Service; (o) have any right to receive the source code for the Software Service or any deliverable; (p) use the Software Service to send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative messages, whether commercial or otherwise; (q) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; or (r) harass or interfere with another user’s use and enjoyment of the Software Service.

4. NON-ECOTRAK PROVIDERS

• 4.1 Acquisition of Non-Ecotrak Products and Services.  Ecotrak or Service Provider may make available third-party products or services to the applicable Customer, including, for example, Non-Ecotrak Applications and implementation and other consulting services.  Any acquisition by Customer of such non-Ecotrak products or services, and any exchange of data between Customer and any non-Ecotrak provider, including, but not limited to, Service Provider, is solely between Customer and the applicable non-Ecotrak provider.  Ecotrak does not warrant or support Non-Ecotrak Applications or other non-Ecotrak products or services, whether or not they are designated by Ecotrak as “certified” or otherwise, except as specified in the applicable Customer’s Order Form (if at all).

• 4.2 Non-Ecotrak Applications and Customer Data.  If the applicable Customer installs or enables a Non-Ecotrak Application made available by Service Provider for use with a Software Service, Service Provider acknowledges that the applicable Customer has granted Ecotrak permission to allow Service Provider to access such Customer’s Customer Data as required for the interoperation of that Non-Ecotrak Application with the Software Service.  Ecotrak is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by a Non-Ecotrak Application.

• 4.3 Integration with Non-Ecotrak Applications.  The Software Services may contain features designed to interoperate with Non-Ecotrak Applications.  To use such features, the applicable Customer may be required to obtain access to Non-Ecotrak Applications from their provider(s), including, but not limited to, the Service Provider, and may be required to grant Ecotrak access to the applicable Customer’s account(s) on the Non-Ecotrak Applications.  If Service Provider ceases to make the Non-Ecotrak Application available for interoperation with the corresponding Software Service features on reasonable terms, Service Provider acknowledges and agrees that Ecotrak may cease providing those Software Service features without entitling the applicable Customer to any refund, credit, or other compensation.

5. FEES AND PAYMENT

• 5.1 Fees.  Service Provider shall pay to Ecotrak a fee of one dollar ($1) (the “Software Usage Fee”) per invoice issued by Service Provider and approved by the applicable Customer if the corresponding work order for such invoice is completed in the Software Services.  Service Provider acknowledges and agrees that it shall be responsible for paying such Software Usage Fee to Ecotrak for all such Customer-approved invoices, regardless of whether Service Provider has received payment from the applicable Customer for such Customer-approved invoice.   

• 5.2 Invoicing and Payment.  Service Provider will receive a monthly invoice from Ecotrak, and such invoices will reflect the total Software Usage Fee based upon the number of Customer-approved invoices received during the prior month.  Unless otherwise stated in the applicable invoice, fees and expenses are due net 30 days from the invoice date.  Service Provider is responsible for providing complete and accurate billing and contact information to Ecotrak and notifying Ecotrak of any changes to such information.  Except as otherwise indicated by Ecotrak, (a) Service Provider’s payment obligations hereunder are non-cancelable and fees paid are non-refundable and (b) prices are quoted and payable in U.S. dollars.

• 5.3 Overdue Charges.  If any invoiced amount is overdue, then without limiting Ecotrak’s other rights or remedies, Ecotrak may assess late payment interest on those charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.  Service Provider will reimburse all of Ecotrak’s costs and expenses (including attorneys’ and experts’ fees) incurred in any attempt to collect or the collection of overdue amounts.

• 5.4 Suspension of Service.  If any charge owing by Service Provider is thirty (30) days or more overdue, Ecotrak may, without limiting its other rights and remedies, suspend Service Provider’s access to the Software Services until such amounts are paid in full.

• 5.5 Taxes.  Ecotrak's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Service Provider is responsible for paying all Taxes associated with its purchases hereunder.  If Ecotrak has the legal obligation to pay or collect Taxes for which Service Provider is responsible under this Section 5, Ecotrak will invoice Service Provider and Service Provider will pay that amount unless Service Provider provides Ecotrak with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, Ecotrak is solely responsible for taxes assessable against it based on its income, property and employees.

• 5.6 Future Functionality.  Service Provider agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Ecotrak regarding future functionality or features.

6. PROPRIETARY RIGHTS AND LICENSES

• 6.1 Reservation of Rights.  Ecotrak and its licensors reserve all of their right, title and interest in and to the Software Services, including all of their related intellectual property rights.  No rights are granted to Service Provider other than as expressly set forth in these Terms.

• 6.2 License by Ecotrak to Use Software Services.  Subject to Service Provider’s compliance with these Terms, Ecotrak grants to Service Provider a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Software Services ordered by the applicable Customer pursuant to these Terms and the Documentation, solely during the applicable Customer’s subscription term and solely for the applicable Customer’s internal business purposes (i.e., only for the management of the applicable Customer’s assets for those concepts and for those locations specified in the applicable Customer’s Order Form).

• 6.3 Work Product.  Anything resulting from or arising in the course of performance of Ecotrak’s services hereunder will be deemed “Work Product.”  As between the parties, Ecotrak will own all right, title and interest in and to the Work Product, including all derivative works, enhancements and modifications of the Software Services.  Service Provider will take any further acts necessary to effect the intent of this provision.

• 6.4 License by Service Provider to Use Feedback.  Service Provider grants to Ecotrak and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use and incorporate into the Software Services or other offerings any suggestion, enhancement request, recommendation, correction or other feedback (“Feedback”) provided by Service Provider or Users relating to the Software Services.  Ecotrak will not be obligated to credit Service Provider or any User for any such Feedback or hold any Feedback in confidence.

• 6.5 Usage Data.  Notwithstanding anything to the contrary, Ecotrak may use (itself or through third parties) Service Provider Data and data regarding Service Provider’s use of the Software Services to prevent or fix technical problems, improve its offerings, or develop other offerings. 

• 6.6 Federal Government End Use Provisions.  Ecotrak provides the Software Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software Services include only those rights customarily provided to the public as defined herein. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a need for rights not granted under these terms, it must negotiate with Ecotrak to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

7. CONFIDENTIALITY

• 7.1 Definition of Confidential Information.  “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information of Service Provider includes Service Provider Data; Confidential Information of Ecotrak includes the Software Services, Work Product, and other Ecotrak intellectual property; and Confidential Information of each party includes these Terms and all Order Forms of the applicable Customer (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

• 7.2 Protection of Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights hereunder.  Except as otherwise authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements containing protections comparable to those herein.  Neither party will disclose these Terms or any Order Form of the applicable Customer to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.

• 7.3 Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Receiving Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

8. PROTECTION OF SERVICE PROVIDER DATA

• 8.1 Generally.  Ecotrak will maintain commercially reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Service Provider Data.  Those safeguards include measures designed for preventing access, use, modification or disclosure of Service Provider Data by Ecotrak personnel except (a) to provide the Software Services, prevent or fix technical problems, or improve the Software Service, (b) as compelled by law in accordance with Section 7.3, or (c) as expressly permitted by these Terms or otherwise writing by Service Provider.

• 8.2 IT Systems Security.  Ecotrak will maintain various controls, processes and standards for safeguarding Ecotrak’s information technology systems, which may include: controls for prevention, detection and removal of Malicious Code; processes for identifying technical vulnerabilities; minimum security requirements in network services agreements; standards for audit trails; processes for monitoring key systems for unusual or suspicious activity; processes for timely reporting of information security events or suspected security weaknesses; system access controls that include user authentication, use of unique identifiers and two-factor authentication for remote users; and procedures to control the installation of software on operational systems.

• 8.3 Prohibited Data.  Notwithstanding any other provision herein, Service Provider acknowledges that the Software Services are designed for the processing of the applicable Customer’s asset data.  The Software Services are not designed for the following types of data: (a) individual medical or health information, including any information comprising “Protected Health Information” under the Health Insurance Portability and Accountability Act; (b) security codes, passwords, credit or debit card numbers; (c) personal data (as defined by applicable law), particularly regarding residents of jurisdictions outside of the United States of America or individuals under thirteen years of age; or (d) information concerning a natural person’s (i) sex life or sexual orientation, (ii) racial or ethnic origin, (iii) genetic or biometric data, (iv) political opinions, (v) religious or philosophical beliefs, or (vi) trade union membership, (each of the foregoing, “Prohibited Data”). Service Provider shall not enter (or permit the entry of), whether on its own or on the applicable Customer’s behalf, any Prohibited Data into the Software Service or have Ecotrak enter Prohibited Data into the Software Service on Service Provider’s or the applicable Customer’s behalf, and shall ensure that no Service Provider Data constitutes or contains Prohibited Data.

9. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

• 9.1 Ecotrak Warranties for Software Services.  Ecotrak warrants that the Software Service will conform in all material respects to the then-current Documentation for the applicable Software Service.  Service Provider’s sole and exclusive remedy, and Ecotrak’s entire liability, for breach of this limited warranty will be correction of the warranty nonconformity in the Software Service.  This limited warranty will not be valid to the extent the warranty nonconformity was caused by Service Provider’s abuse, misuse or modification of the Software Service.  Service Provider must notify Ecotrak in writing of any nonconformity of the Software Service within 30 days of discovery of such nonconformity in order to receive the above warranty remedies.

• 9.2 Service Provider Warranties.  Service Provider warrants that (a) it has the right to provide the Service Provider Materials to Ecotrak (and the Customer Materials, to the extent Service Provider provides any to Ecotrak) and allow Ecotrak to use the Service Providers Materials (and the Customer Materials, to the extent Service Provider provides any to Ecotrak) to provide the Software Services, and (b) it will comply with all applicable laws in its use of the Software Services.

• 9.3 Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SOFTWARE SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. ECOTRAK DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE SOFTWARE SERVICES WILL BE CORRECTED. ECOTRAK WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-ECOTRAK APPLICATIONS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

10. INDEMNIFICATION

• 10.1 Indemnification by Ecotrak.  Ecotrak will defend Service Provider against any claim, demand, suit or proceeding made or brought against Service Provider by a third party alleging that the use of a Software Service in accordance with these Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Service Provider”), and will indemnify Service Provider from any damages, attorney fees and costs finally awarded against Service Provider as a result of, or for amounts paid or payable by Service Provider under a Ecotrak and court-approved settlement of, a Claim Against Service Provider, provided Service Provider (a) promptly gives Ecotrak written notice of the Claim Against Service Provider, (b) gives Ecotrak sole control of the defense and settlement of the Claim Against Service Provider (except that Ecotrak may not settle any Claim Against Service Provider unless it unconditionally releases Service Provider of all liability for past infringements), and (c) gives Ecotrak all reasonable assistance. If Ecotrak receives information about an infringement or misappropriation claim related to a Software Service, Ecotrak may in its discretion and at no cost to Service Provider (i) modify the Software Service so that it no longer infringes or misappropriates, and (ii) obtain a license for Service Provider’s continued use of that Software Service in accordance with these Terms. Ecotrak will not have any obligations under this Section 10 or any liability to the extent (A) a Claim Against Service Provider arises from Service Provider Materials (or Customer Materials, to the extent Service Provider provides any to Ecotrak), a Non-Ecotrak Application or Service Provider’s breach of these Terms, or (B) the Claim Against Service Provider would not have arisen but for (I) Service Provider’s combination or use of the Software Service with non-Ecotrak software, services or data, (II) modification of the Software Service by anyone other than Ecotrak, (III) Service Provider 's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) Ecotrak’s customization of the Software Service to meet Service Provider’s particular specifications or instructions, or (V) Service Provider’s use of the Software Service in a manner not strictly in accordance with these Terms.

• 10.2 Indemnification by Service Provider.  Service Provider will defend Ecotrak against any claim, demand, suit or proceeding made or brought against Ecotrak by a third party alleging (a) that the Service Provider Materials (or Customer Materials, to the extent Service Provider provides any to Ecotrak), or Ecotrak’s use thereof, or Service Provider’s use of any Software Service in breach of these Terms, violates, infringes or misappropriates such third party’s intellectual property, privacy or other rights, or violates applicable law, (b) facts that, if true, constitute a breach of these Terms by Service Provider or acts or omissions by Service Provider described in Section 10.1(I)-(V), or (c) any demand for compensation or benefits, or any other claim, related to Service Provider’s use of or decision based on a Software Service, except to the extent constituting grounds for a Claim Against Service Provider (collectively, a “Claim Against Ecotrak”), and will indemnify Ecotrak from any damages, attorney fees and costs finally awarded against Ecotrak as a result of, or for any amounts paid or payable by Ecotrak under a court-approved settlement of, a Claim Against Ecotrak, provided Ecotrak (i) promptly gives Service Provider written notice of the Claim Against Ecotrak, (ii) gives Service Provider sole control of the defense and settlement of the Claim Against Ecotrak (except that Service Provider may not settle any Claim Against Ecotrak unless it unconditionally releases Ecotrak of all liability), and (iii) gives Service Provider all reasonable assistance, at Service Provider’s expense.

• 10.3 Exclusive Remedy.  This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in Section 10.1.

11. LIMITATION OF LIABILITY

• 11.1 Limitation of Damages.  ECOTRAK’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED ITS PER INCIDENT OR PER OCCURRENCE INSURANCE COVERAGE FOR A SINGLE INCIDENT OR OCCURRENCE OR ITS AGGREGATE INSURANCE COVERAGE FOR MULTIPLE INCIDENTS OR OCCURRENCES COVERED BY THE SAME INSURANCE POLICY, AS THE CASE MAY BE.  THE ABOVE LIMITATIONS WILL APPLY REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY, AND EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES.

• 11.2 Exclusion of Consequential and Related Damages.  IN NO EVENT WILL ECOTRAK HAVE ANY LIABILITY TO SERVICE PROVIDER FOR ANY LOST PROFITS, REVENUES OR DATA, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY ON WHICH THEY ARE BASED, AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

• 11.3 Limitation on Time to File Claims.  A PARTY MUST FILE ANY CLAIM ARISING FROM OR RELATED TO THESE TERMS WITHIN ONE YEAR AFTER THE CLAIM AROSE, OR THE CLAIM WILL BE FORFEITED AND FOREVER BARRED.

• 11.4 Force Majeure Events.  ECOTRAK WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY DUE TO A FORCE MAJEURE EVENT.

12. TERM AND TERMINATION

• 12.1 Term.  These Terms shall remain in effect for the duration of the subscription period provided for the in the applicable Customer’s Order Form.  For clarity, Service Provider shall remain subject to these Terms for so long as Service Provider has a right to use the Software Services. 

• 12.2 Payment upon Termination.  In no event will termination or expiration of these Terms or the applicable Customer’s Order Form relieve Service Provider of its obligation to pay any fees payable to Ecotrak for the period prior to the effective date of termination.

• 12.3 Service Provider Data Portability and Deletion.  Upon request by Service Provider made within 30 days after the effective date of termination or expiration of these Terms or the applicable Customer’s Order Form, Ecotrak will make the Service Provider Data, if any, available to Service Provider for export or download as provided in the Documentation.  After such 30-day period, Ecotrak will have no obligation to maintain or provide any Service Provider Data.

• 12.4 Effects of Termination; Surviving Provisions.  Service Provider’s right to use the Software Services will terminate immediately and automatically upon the expiration or termination of the applicable Customer’s Order Form.  The following Sections will survive any termination or expiration of these Terms: 4, 5, 6, 7, 8.3, 9.3, 10, 11, 12.2-12.4, and 14.

13. INSURANCE  

• 13.1 Coverage.  Ecotrak will maintain in effect at all times during the rendering of Software Services under these Terms the following insurance:

  • (a) Commercial General Liability Insurance with limits of at least $1,000,000 - Combined Bodily Injury and Property Damage, $1,000,000 - Single Limit Bodily Injury and Property Damage. Such insurance will be written on an occurrence basis.   

  • (b) Owned, Non-Owned and Hired Automobile Liability Insurance with at least $1,000,000 Combined Single Limit Bodily Injury and Property Damage limits.   

  • (c) Excess/Umbrella Liability Insurance with a minimum limit of $5,000,000 per occurrence (this policy should provide excess limits for the general liability, employers liability and automobile liability and be follow form or at least as broad in coverage).   

  • (d) Full statutory coverage for Workers’ Compensation and Employers Liability with limits of at least $1,000,000 and Disability Insurance for all its employees if and as required by law. These policies will contain waivers of the insurer’s subrogation rights against Customer where permitted by law.   

  • (e) Errors and Omissions Liability Insurance, with a minimum limit of $2,000,000 per occurrence, $2,000,000 annual aggregate; and   

  • (f) Cyber Liability Insurance with minimum limits of $2,000,000 per occurrence and $2,000,000 annual aggregate.

14. GENERAL PROVISIONS  

• 14.1 Export Compliance.  The Software Services, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Ecotrak and Service Provider each represents that it is not named on any U.S. government denied-party list. Service Provider will not permit any User to access or use any Software Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Ecotrak does not represent or warrant that the use of the Software Service is lawful or available in any country outside of the United States.

• 14.2 Entire Agreement.  These Terms contain the entire agreement between Ecotrak and Service Provider regarding Ecotrak’s provision of, and Service Provider’s receipt and use of, the Software Services, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

• 14.3 Relationship of the Parties.  The parties are independent contractors.  Nothing in these Terms create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

• 14.4 Third-Party Beneficiaries.  There are no third-party beneficiaries under these Terms.

• 14.5 Notices.  Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), which must be sent by physical mail, the day of sending by email. Notices to Ecotrak will be addressed to the attention of “CEO,” at the following address, or at such other address as Ecotrak may provide to Service Provider by notice: 18004 Sky Park Circle, Suite 100, Irvine, CA 92614. All other notices to Service Provider will be addressed to the relevant contacts designated by Customer in an Order Form.  Service Provider is responsible for providing its notice address to Ecotrak and notifying Ecotrak of any changes to such address.

• 14.6 Waiver.  No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right.

• 14.7 Severability.  If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be reformed to the nearest enforceable provision (or deemed null and void if this is impermissible), and the remaining provisions of these Terms will remain in effect.

• 14.8 Construction.  These Terms will not be construed against the drafter. Lists following “include”, “includes” or “include” are illustrative and not exhaustive. Terms not defined in the body of these Terms are defined as stated in Exhibit A.

• 14.9 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign its rights or obligations hereunder, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Ecotrak may also subcontract its performance of the Software Services under these Terms.

• 14.10 Governing Law.  These Terms, and any disputes arising out of or related thereto, will be governed exclusively by the internal laws of the State of California, without regard to any principle that would cause the application of the law of any other state.

• 14.11 Venue.  All claims and issues arising from, relating to, or connected with these Terms that an arbitrator determines are excluded from the arbitration requirements herein (i.e., Section 14.12) may only be filed and resolved by state or Federal courts located in Los Angeles County, California, and each party consents to the exclusive jurisdiction of those courts. Further, Ecotrak may obtain injunctive or other equitable relief in such courts in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.

• 14.12 Arbitration.  The parties must submit all claims and issues arising from, relating to, or connected with these Terms to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section 14.12.  A single arbitrator will conduct the arbitration in Los Angeles County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and these Terms. The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by these Terms.  The arbitrator’s decision, award and relief will be conclusive and binding on the parties.  Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.

• 14.13 Class-Action Waiver.  Arbitration may only be conducted on an individual, not a class wide, basis.  No arbitration proceeding between Service Provider and Ecotrak may be consolidated with any other arbitration proceeding involving Ecotrak and any other person or entity.  Each party shall file and prosecute arbitration proceedings separately and individually in the name of Service Provider and Ecotrak, and not in any representative capacity.  Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section 14.13.

• 14.14 Changes.  Ecotrak reserves the right to make changes to these Terms at its discretion.

EXHIBIT A

DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Customer” means the customer of Ecotrak that has either (i) onboarded Service Provider to the Software Services or (ii) approved an invoice of Service Provider for which the corresponding work order is completed in the Software Services, and in either instance for which Service Provider has acknowledged and agreed to these Terms.

“Customer Data” means electronic data or information submitted by the applicable Customer or for such Customer by Service Provider or any other person to the Software Services or collected and processed by the applicable Customer or for such Customer by Service Provider or any other person using the Software Services. “Customer Data” does not include data transmitted to or stored in Non-Ecotrak Applications.

“Customer Materials” means the Customer Data and all other materials provided by the applicable Customer or for the applicable Customer by Service Provider or any other person to Ecotrak.

“Documentation” means Ecotrak’s specifications, user guides and similar documentation available through its website, and any custom documentation Ecotrak creates for the applicable Customer, all as updated from time to time.

“Ecotrak” means Ecotrak, LLC, a Delaware limited liability company, or its Affiliate.

“Force Majeure Event” means circumstances beyond Ecotrak’s control, including modifications of the Software Service by any person other than Ecotrak or a person acting at Ecotrak’s direction, war, natural disaster, or other “acts of God”, general Internet outages, failure of Service Provider’s infrastructure or connectivity (including direct connectivity and virtual private network (VPN) connectivity to the Software Service), computer and telecommunications failures and delays not within Ecotrak’s control, and network intrusions or denial-of-service or other attacks.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, cancel bots and Trojan horses.

“Non-Ecotrak Application” means a web-based or offline software application that is provided by the applicable Customer, Service Provider, or a third party and interoperates with a Software Service, including, for example, an application that is developed by the applicable Customer or for such Customer by Service Provider or any other person.

“Order Form” means an ordering document specifying the Software Services to be provided by Ecotrak to the applicable Customer that is entered into between such Customer or any of its Affiliates and Ecotrak or any of its Affiliates, including any addenda and supplements thereto.

“Service Provider” means either (i) the service provider that Customer has onboarded to the Software Services or (ii) the service provider that issued the Customer-approved invoice for which the corresponding work order is completed in the Software Services, and in either instance is acknowledging and agreeing to these Terms.

“Service Provider Data” means electronic data or information submitted by or for Service Provider to the Software Services or collected and processed by or for Service Provider using the Software Services.

“Software Services” means the Ecotrak software services ordered by the applicable Customer and used by Service Provider solely for the benefit of such Customer pursuant to these Terms.  “Software Services” excludes Non-Ecotrak Applications.

“User” means an individual who accesses the Software Services on behalf of Service Provider.  “Users” include, for example, employees, contractors and agents of Service Provider.