Installer terms and conditions

FM_Terms and conditions of cupply (Services)‐ U.S. rev. 03/15

Terms and conditions of supply Fleetmatics USA, LLC (Services)

1. Definitions.

1.1 “Agreement” means these terms and conditions together with the Order and any other document listed on the Order which are specifically incorporated into this Agreement.

1.2 “Change Order” is a document issued by Fleetmatics that alters, amends or modifies the Agreement.

1.3 “Order." A document submitted by Fleetmatics to Service Provider that specifies the Work to be done by Service Provider, the location, the price, the payment terms, and other specifics. The Order together with these terms and conditions and all documents specifically referenced in the Order are the entire agreement between the parties in respect of the Work and no modification shall be effective except by a Change Order. Any document submitted by Service Provider, such as proposals, quotations or scope of work documents, shall be for Service Provider’s convenience only and shall not alter the terms of this Agreement except as specifically stated on the Order.

1.4 “Term.” The Agreement shall become effective on Service Provider’s acknowledgement of the Order, commencement of Work, purchase of materials or components for the purpose of performing any Order, or any other conduct confirming the transaction, and shall remain in effect until all Work is completed under the Order, or such other period as specified on the Order, if any.

1.5 "Work." The services and/or deliverables to be provided by Service Provider, which are specified in an Order.

2. Work; Change Orders. Service Provider shall provide to Fleetmatics the Work in accordance with the terms and conditions hereof. Fleetmatics may add to, reduce or change the scope of Work by issuing a Change Order. Change Orders shall modify the scope of Work only to the extent specified in such Change Order. All other terms and conditions of this Agreement shall remain in effect. Change Orders may require modification of fees charged and/or delivery schedules. If a Change Order requires a change in fees and/or delivery schedules, Service Provider will immediately notify Fleetmatics in writing. Change Orders shall be deemed accepted by Service Provider upon Service Provider’s acknowledgement of the Change Order, commencement of Work pursuant to the Change Order, purchase of materials or components for the purpose of performing any Order, or any other conduct confirming the transaction.

3. Contact Person. Service Provider shall designate in writing one individual and one back-up individual, reasonably acceptable to Fleetmatics, to be responsible for communication with Fleetmatics regarding the Work, and otherwise to represent Service Provider in business dealings with Fleetmatics hereunder.

4. Compliance with Laws. Service Provider shall comply with all laws, statutes, ordinances, codes, rules and regulations of any governmental authority having jurisdiction over the Work or Service Provider. Service Provider shall be responsible for maintaining all permits, inspections, licenses and certifications required by applicable law or regulation necessary to conduct business in the location where the Work is to be performed and to perform the Work.

5. Prices and Payment Terms. Prices shall be as set forth in the Order. Prices are inclusive of all taxes. Service Provider will indemnify Fleetmatics for all taxes, penalties and interest levied against Fleetmatics which Fleetmatics pays on Service Provider’s behalf. Service Provider accepts exclusive liability for all payroll taxes, including any interest, resulting from amounts paid to any persons used by Service Provider in performing the Work. Service Provider shall invoice Fleetmatics on a timely basis, not later than 60 days after performance of the Work. Invoices not received within 60 days shall be invalid. Fleetmatics shall pay legitimate, approved invoices in accordance with the payment terms specified on the Order. If payment terms are not specified, terms are net 45. Payment will be made electronically or by check, unless otherwise specified on the Order.

6. Reports and Audits. Service Provider shall, if requested by Fleetmatics, periodically submit a summary report of Work accomplished during a specific period for each job being performed for Fleetmatics under this Agreement. In addition, for any time and materials project, Fleetmatics shall have the right, at any reasonable time, to examine all original cost records, including employees' time sheets, payrolls, records, receiving reports, invoices and all other evidence of expenditure involving this Agreement and the right to audit same.

7. Nature of Relationship. Service Provider acknowledges that Service Provider and Fleetmatics are independent entities and neither party is an employee, agent, partner or joint venture of the other. Service Provider shall have no right to bind Fleetmatics to any agreement with any third party or to incur any obligation or liability on behalf of Fleetmatics. Service Provider is an independent contractor and shall have sole control over the means, methods, techniques, sequences, and procedures of performing the Work in accordance with Fleetmatics’ specifications and the Order. Service Provider shall be responsible for any and all wages, taxes or benefits that are due and owing to its employees and all other Service Provider personnel.

8. Insurance. Service Provider shall secure and maintain the type and amounts of insurance as Fleetmatics may reasonably require, which shall at a minimum comply with the stated coverage requirements of the “Insurance Requirements Exhibit” available from Fleetmatics. Service Provider shall promptly provide evidence of the minimum coverage by providing a certificate of insurance acceptable to Fleetmatics. Neither Service Provider’s failure to provide such certificate, nor Fleetmatics’ decision to not make such request, shall release Service Provider from its obligation to maintain the minimum coverage required hereunder. Service Provider shall require its subcontractors to carry insurance in the amount, type and form of insurance required by the Agreement. If its subcontractors do not obtain such coverage, Service Provider shall insure the activities of its subcontractors.

9. Service Provider Personnel. Service Provider agrees to adhere to Fleetmatics’ Code of Business Conduct and Ethics. At Fleetmatics’ request, after reasonable consultation with Service Provider, Service Provider shall remove any Service Provider employee, subcontractor or supplier that is not satisfactory to Fleetmatics. If requested, Service Provider shall promptly provide a qualified replacement for any removed employee at the same hourly rate. If Service Provider makes a substitution for any Service Provider personnel, no costs of lost productivity occasioned by the change shall be billed to Fleetmatics.

10. Confidential Information. The parties anticipate that Fleetmatics may disclose confidential information to Service Provider. For purposes hereof, "Confidential Information" means information of Fleetmatics or its customer (i) which relates to the purpose and subject matter of the Work, including computer programs, business and technical information, and data, or (ii) which, although not related to the Work, is nevertheless disclosed hereunder, and which, in any case, is disclosed by Fleetmatics or its customer or an affiliate to Service Provider in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Service Provider within fifteen (15) days of the initial disclosure. Service Provider may use Confidential Information of Fleetmatics only for the purposes of this Agreement and the performance of the Work, and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Service Provider may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Service Provider at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Service Provider; (iii) is received by Service Provider from a third party free to disclose it without obligation to Fleetmatics; or (iv) is independently developed by Service Provider without reference to Confidential Information.

11. Limited Warranty. Service Provider warrants that Work shall be performed in a professional and workmanlike manner and consistent with generally accepted industry standards. For installation services, Service Provider warrants all Work shall strictly comply with Fleetmatics’ written installation instructions. For any breach of the above warranty, Service Provider shall at Fleetmatics’ sole option (i) re-perform the non-conforming or defective Work at Service Provider’s cost and expense, (ii) provide substitute Work at no cost to Fleetmatics, (iii) off-set any amounts due Service Provider from Fleetmatics for Fleetmatics to find substitute Work, (iv) reimburse Fleetmatics for substitute Work.

12. Indemnity for Damage to Property and Injury to Persons. Service Provider shall defend, indemnify, and hold Fleetmatics harmless from any and all claims, liabilities, losses, damages, costs, penalties, interest, and expenses (including attorneys' fees assessed against or incurred by Fleetmatics and in defending the same) which Fleetmatics may incur arising out of a) intellectual property infringement (based upon Service Provider’s failure to follow Fleetmatics instructions), b) Service Provider’s breach of its obligations hereunder; or c) bodily injury (including death) to any person, or property damage, or both, directly or indirectly caused by the act(s) or omission of Service Provider and/or Service Provider's employee(s) or contractor(s) while performing Work for Fleetmatics hereunder. Without limiting the foregoing, such obligation includes claims involving Service Provider’s subcontractors, suppliers and employees.

13. Indemnity for Federal and State Employment Laws. Service Provider shall defend, indemnify, and hold Fleetmatics harmless from any and all claims, liabilities, losses, damages, costs, penalties, interest, and expenses (including attorneys' fees assessed against or incurred by Fleetmatics and in defending the same) which Fleetmatics may incur arising out of Service Provider's failure to comply with any employment, labor laws or tax laws, regulations and/or rules including, without limitation, laws, regulations and/or rules governing wage, hour and overtime hours, employee benefits, discrimination, verification of legal employment status, harassment, workers' compensation, employment related taxes (including social security, unemployment and withholdings), whether such claim is brought by or on behalf of an employee(s) of Service Provider, or any governmental agency.



16. Safety. Service Provider shall take all necessary precautions for the protection of the health and safety of its employees, subcontractors and suppliers, as well as Fleetmatics and its customers and other third parties. Service Provider shall be solely responsible for the safety of its employees, subcontractors, suppliers, and other third parties.

17. Ownership of Information. All Work prepared or developed by Service Provider in the performance of the Work shall be the sole and exclusive property of Fleetmatics. Except as specifically authorized in writing by Fleetmatics, information and any other data developed or acquired by or furnished to Service Provider in the performance of Work shall be used only in connection with the Work and shall be the exclusive property of Fleetmatics. All Work shall be work-made-for-hire and Service Provider agrees to assign and does hereby expressly assign to Fleetmatics all rights, title and interests in and to the Work, including all copyrights, patents, trade dress, and any moral rights. Service Provider will obtain any assignments from other parties, including its employees that it requires to comply with this Section.

18. Automatic Termination. This Agreement and all Orders will terminate immediately without notice upon the commencement of insolvency, bankruptcy, or similar proceedings by or against Service Provider, any assignment or attempted assignment by Service Provider for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for Service Provider.

19. Termination for Cause. If Service Provider fails to comply with any of the material terms and conditions of this Agreement including any Order, Fleetmatics may terminate this Agreement and/or any or all Orders upon five (5) days written notice to Service Provider, unless within the period of such notice, all breaches specified therein shall have been remedied.

20. Termination for Convenience. Notwithstanding anything contained herein to the contrary, Fleetmatics may terminate this Agreement and/or any or all Orders at any time upon written notice to Service Provider. Upon such termination, Service Provider waives all claims for damages as a result of such termination including, but not limited to, loss of profits, idle equipment, labor and facilities, and any claims of subcontractors or suppliers as a result of such termination, and shall accept the value of all Work completed through the date of termination as sole and complete compensation. No termination fee(s) shall be payable by Fleetmatics.

21. Return of Materials and Payment. Upon the request of Fleetmatics, and in any event, upon the termination of this Agreement or any Work Order, Fleetmatics shall pay Service Provider for all work satisfactorily completed as of the termination date, and Service Provider shall surrender to Fleetmatics all work in progress, if any, and documents pertaining to the business of Fleetmatics previously delivered by Fleetmatics to Service Provider. This provision shall apply to all materials made available or disclosed to Service Provider by any third party in connection with this Agreement or any Work Order.

22. Notices. Any notice or communication required or permitted to be given hereunder shall be delivered by overnight courier, email or by regular post (registered or certified only), return receipt requested, in each case to the address and contact as set forth on the Order. Such notice will be deemed to be given when received.

23. Assignment. Service Provider shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without Fleetmatics' prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.

24. Continuing Obligations. The following obligations shall survive the expiration or termination hereof: (i) any and all licenses granted hereunder, (ii) any and all limitations of liability and indemnities granted by either party herein, (iii) the payment of taxes, duties, or any money to either party hereunder, and (v) the return of Fleetmatics materials.

25. Miscellaneous. This Agreement shall be construed under the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of law, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. All disputes arising out of the Agreement that cannot be resolved through negotiation shall be brought only in the district and federal courts located in Massachusetts. Each party hereby consents to the exclusive personal jurisdiction and venue of the courts, state and federal, located in Massachusetts. This Agreement may be modified only by a written agreement signed by the parties. This Agreement is executed in the English language and the interpretation and construction of this Agreement shall be based solely on the English language. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision.