ELD Master Purchase Agreement
Please read this agreement carefully before accepting it and ordering.
I. THE PARTIES
This is an agreement between you, whether a purchaser or any user on behalf of whom the purchaser is completing this purchase, collectively referred to as the “Buyer” or “Customer” or “Subscriber”,
And
Synodic Inc. a duly incorporated Ontario corporation, referred to as “Synodic” or “Seller” or “Provider” for the supply of the Synodic ELD™ package of goods and services, comprised of:
II. DEFINITIONS
For the purposes of this Agreement and any referenced legal instruments, the following words shall have the corresponding meanings assigned to them:
III. THE PURCHASE
The Buyer will purchase online the Product by completing the following successive steps:
After submitting an online order to Synodic, the Buyer will receive an order acknowledgement email. This email is confirmation of its submission and is not an acceptance of the order.
Acceptance of the Buyer’s order and the formation of a contract between The Buyer and Synodic will take place when we send the Buyer a Notice of Order Acceptance, by email or otherwise, validating that the order has been accepted. Conversely, Synodic reserves the right to reject any Order, or the Buyer may cancel any order before receiving the Notice of Order Acceptance. Further, the Products you have ordered will be shipped and delivered to the Buyer in accordance with Sections IX and X hereof. In case the order is not accepted, or it was cancelled it before the Product has been shipped to the Buyer, Synodic shall refund the payment in accordance with Section XI hereof.
The purchase means the Buyer becomes the owner of the Device(s) with the non-exclusive right to use the selected Services, and the non-exclusive right to use the preinstalled Software, but ownership of devices does not cover the delivery, installation and testing of the Product, which following the purchase are regulated by Section X hereinafter. If the Buyer plans to order in excess of 100 Devices and one or more Services, the Buyer may send an email to Synodic customer support department at eld@synodicinc.com and Synodic may agree on a different arrangement than the standard online Master Purchase Agreement.
Customer shall access its account and Service(s) using the browser and/or the purchased Hardware. Customer shall access the Synodic ELD™ package of goods and services through the Synodic website and by entering Customer’s account name and password. Customer will be solely responsible for any use of any account name and password. Synodic will not be held responsible in any manner for the use or misuse of any account name and/or password.
IV. APPLICABLE LEGAL INSTRUMENTS
By finalizing this purchase, the Buyer expressly acknowledges and agrees to be bound and abide by the Synodic ELD Master Purchase Agreement and each and all of the following legal instruments incorporated by reference, which individually and collectively govern the purchase of the Devices and the grant of the right to use of Service(s) and associated Software:
The Buyer expressly acknowledges and agrees that each Applicable Legal Instrument governs a specific subject-matter and has a specific object or scope. However, when necessary, all Applicable Legal Instruments will be construed collectively as a system, meaning:
When a provision regulating a particular conduct or fact is missing from the an Applicable Legal Instrument, any provision from another Applicable Legal Instrument will be applied by analogy to any other Applicable Legal Instrument (E.g.: if the ELD Master Purchase Agreement does not provide for a particular warranty, and such provision can be found in the ELD Licensing and Service Agreement, than, if possible, the provision from the ELD Licensing and Service Agreement shall be applied to the ELD Master Purchase Agreement);
When provisions with the same object, from different legal instruments, have contradictory meanings, the specialized provision shall take precedence over the general provision (E.g.: a provision pertaining to the licensing of Software from the ELD Licensing and Service Agreement shall prevail over provisions pertaining to licensing in other Applicable Legal Instrument);
When provisions with the same object, from different legal instruments, have concurring meanings, or prescribe complementary conducts, each provision will add to, or complete the other (E.g.: any limitation of liability of the ELD Master Purchase Agreement will add or complete any limitation of liability of the ELD Licensing and Service Agreement).
The Buyer further acknowledges and agrees that non-compliance with any of terms, conditions, or any clauses of any of the above Applicable Legal Instruments will represent a breach of all legal instruments governing the purchase of the Product, Device(s) or Service(s);
And the Buyer further acknowledges and agrees that it is the Buyer’s obligation to review from time to time, the then-current versions of the Applicable Legal Instruments provided on the Website.
Synodic catalog or display of Services, Devices and price lists do not constitute an offer. By placing an order to us on the website or otherwise, the Buyer makes an offer to purchase the Product. Only if Synodic accepts the order, the purchase of the Product becomes a binding agreement between the Buyer and Synodic. Synodic reserves the right to reject or refuse any order submitted for its acceptance and will not be liable to the Buyer or to anyone else for such refusal or rejection.
All sales of Product(s) are final.
V. CHANGES TO THE APPLICABLE LEGAL INSTRUMENTS
Synodic reserves the right to change or amend any of the Applicable Legal Instruments from time to time, without consent of Buyer, with minimum seven (7) days prior notice given to the Buyer, by changing or amending them on the Website.
Such changes or amendments will be binding the Buyer for the rest of the current Term of the ELD Master Purchase Agreement or other Applicable Legal Instruments from the date when they come into force. If the Term is extended, or in case of successive Terms, the latest applicable changes or amendments displayed on Synodic website will automatically apply to the Buyer and the Buyer will be bound to comply with the latest form of any of the Applicable Legal Instruments.
For the sake of clarity, Synodic reserves also the right to change the prices and fees for the Hardware, Services, and/or the Product(s), without consent of Buyer, as well as the right to inform the Buyer of any changes operated by third parties on taxes, duties, levies, fees and/or charges, which are applied by Synodic on behalf of, or in connection to such third parties, with minimum seven (7) days prior notice given to the Buyer, and by changing them on the Website. Any changes of Prices, Service Fees, or their components will become mandatory applicable to the-then current Applicable Legal Instruments and will be binding the Buyer from the date when the changes will come into effect, and not retroactively for past payments.
VI. PRICE AND PAYMENT
Products shall be sold to the Buyer at the prices quoted to the Buyer upon acceptance of each order. Applicable HST, GST and/or other taxes, (based on the bill-to address and the sales tax rate in effect at the time of order of the Product), duties, levies, as well as shipping, handling, and insurance charges, and other mandatory charges required by third parties (e.g. Government, Courier, etc.), are extra and will be included in the payable Price. However, the Buyer will have the possibility to see the each required payment, as well as the Price and Service Fees for the purchase and licensing of the Product before deciding to make the payment and/or undertake the monthly Service Fees.
Prices are stated and payments shall be made in Canadian dollars ($CAD). Unless other payment terms are previously agreed in writing by Synodic, the Buyer shall make full payment of the Price for the month when the Product is ordered. The payment of the Service Fees will be done monthly, as per the ELD Licensing and Service Agreement.
VII. BREACH OF OBLIGATION TO PAY THE PRICE
No purchase of Hardware is completed until the payment of the Price has been made in full. If for whatever reason or method, the Buyer withholds payment in full or in part for the purchase Price, or in the event the Buyer does not make timely payments of the Service Fees for the Services provided in accordance to any other Applicable Legal Instrument, Synodic may, in addition to all other remedies provided at law, either: (1) refuse to deliver/provide the Product(s); (2) declare Buyer’s performance in breach and immediately terminate all Agreements for default; (3) repossess the goods for which payment has not been made; (3) charge interest on the delinquency at the rate of two percent (2%) per month for each month or part thereof of delinquency in payment, plus applicable storage charges, or inventory carrying charges, and recover all costs of collection including reasonable attorney’s fees; (4) sue for damages; and (5) at Synodic option, combine any of the above rights and remedies as provided by law.
VIII. TAXES, CUSTOM DUTIES, LEVIES AND OTHER CHARGES
Buyer shall be responsible for, and shall pay, applicable HST, GST and/or other taxes, levies, and any export or import duties that may be applicable to the sale and/or delivery of the Product(s). Buyer shall also be responsible for and shall pay any other fees and charges in connection to the delivery by Courier, which will be charged by Synodic and paid further to the Courier. Accordingly, Synodic reserves the right to revise its Price after the execution of an order between the parties to include any and all changes in taxes or duties that may become due hereunder and Synodic may invoice the Buyer for said additional amount. This clause shall survive the acceptance and complete performance of an order.
IX. THE DELIVERY
Your purchased Hardware with pre-installed Software will be delivered by Courier. Synodic will use the Courier’s standard terms and conditions for shipping and means of delivery. Any delivery date stated in any document (including an order) is approximate only and shall not constitute any guarantee of delivery on any particular date.
Delivery to the Courier shall be Free on Board (FOB) at Synodic place of business for all Synodic ELD™ Products. The Buyer hereby agrees that INCOTERMS FOB will apply to any means of transportation provided by a Courier, whether motor vehicle, vessel, airplane, or other. Title and risk of loss or damage shall pass to Buyer when the purchased and licensed Product(s) are delivered by Synodic to the Courier at the FOB point, unless otherwise agreed upon in writing by Synodic. Synodic reserves the right to add additional charges for the reasonable cost of storing the Hardware in the event of refusal by Buyer to take delivery of Products Ordered. Freight/transportation charges shall be pre-paid by the Buyer when paying online the aggregated price under this Agreement.
X. ACCEPTANCE OF FINAL DELIVERY, INSTALLATION AND TESTING
The Buyer shall carefully inspect the Products upon final delivery from the Courier to the Buyer and maintain all original packaging upon receiving the Product(s) until it has been installed and is found to be in proper working order. If the Product(s) arrive to Buyer defective at final delivery or if the Product(s) appear not to comply with applicable Synodic Specifications, the Buyer shall promptly notify Synodic of such defects, or noncompliance, along with the reason for such noncompliance, and give Synodic a reasonable opportunity to correct any such defect or noncompliance. The Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such noncompliance in the event Synodic does not receive written notification of noncompliance within fifteen (15) days after the Buyer takes custody of the delivered Products.
The Buyer is responsible for the installation and testing of each Device and/or Product that it purchased using Synodic online Specifications and Instructions available at: http://eld.synodicinc.com
XI. REFUND AND REPLACEMENT
The Buyer is entitled to a full refund in the following circumstances:
If one or more of the Product(s), Hardware, Software, or any parts thereof, are found non-compliant or defective when installed and tested, the Buyer may request their replacement contacting Customer Support at eld@synodicinc.com The non-compliant or defective Hardware or any parts thereof, must be shipped to Synodic on Buyer’s expense. Once received, Synodic will ship to the Buyer new Hardware or any parts thereof for replacement on Synodic expense. For Software, the Provider will make available corrected versions on the website or communicate such corrected versions on Provider’s expense, unless the defective Software is incorporated in the defective Device, in which the former rules on Hardware replacement apply.
All Devices or parts thereof must be returned in the original and undamaged condition, including all original packaging and printed copies online order(s). If the product is not returned in “As New” condition, a refund or replacement may not apply.
XII. REPRESENTATIONS AND WARRANTIES
By entering into this Agreement, the Buyer represents and warrants the following:
Synodic warrants to the Buyer, that if a Product is found to be defective in complying with its functionality parameters, within one (1) year
from the date of purchase, Synodic shall, at its sole and absolute discretion, repair or replace it with a new or reconditioned Product of the same or more recent model in exchange for the defective Product. This limited warranty applies only if proof of purchase is presented at the time a claim is made, by shipping the defective Device with a copy of the payment receipt.
XIII. WARRANTY EXCLUSIONS
Except as expressly provided herein or in other Applicable Legal Instrument, no other Warranties shall apply, whether express or implied, including, but not limited to any Warranties of Merchantability of Fitness for a Particular Purpose. The Seller does not warrant or represent that Synodic Product(s) will meet Buyer’s Requirements, or will properly work in combination with any hardware, software or service provided by third parties, or that the Device(s), Service(s) or Products(s) will be uninterrupted, work in a timely manner, or free of errors. Further, the Seller does not represent and warrant that the results that may be obtained through the use of Services or the accuracy or reliability of any information obtained through the Website or notification system will reach the Buyer’s expectations. The Customer understands and agrees that any information and/or data downloaded or otherwise obtained through the use of the Website or notification system is done at Customer’s own discretion and risk, and that any remedial action is solely Customer’s responsibility.
The one-year limited warranty of the Device provided in Section XII herein shall not apply, and Synodic shall not be responsible or held liable to repair or replace the allegedly defective Device for:
The replacement of the Device specified herein shall be the sole and exclusive remedy to which Synodic is obligated and to which the original Purchaser is entitled. Notwithstanding the generality of the foregoing, Synodic shall not be liable for reimbursement of the original purchase price, loss of use of any vehicle or vessel, loss of time, inconvenience, installation charges, towing charges, or any damages, as herein provided in Section XV.
XIV. PRODUCT CHANGES
At all times, Synodic reserves the right in its sole discretion, without consent of Buyer, to make changes, additions or improvements to the Products ordered or to discontinue any Products.
The Buyer hereby understands and accepts that the Product is not the same as a cell phone and does not operate as effectively as or replace a cell or mobile phone. It is the Buyer responsibility as well as its drivers, other employees, agents, or contractors, to charge, maintain, ensure proper functionality, and whenever necessary, manually input the data required for the daily operation of the Product.
Wireless ELD devices use radio transmissions to convey the data to or from a computer or wireless device. This means that if the Product (once a Synodic service plan is set up) is not in range of a cell tower, the Device will not be able to properly transmit the data. However, the Device may still be collecting and storing information from the motor vehicle or network satellites, so once the Device comes back into cell range the stored data may automatically transmitted to Synodic, upload onto the Buyer’s account, and if necessary, be accessed by the driver or the Buyer. The availability and quality of the Device’s ability to communicate depends on, including without limitation, network capacity, environmental conditions (such as structures, buildings, forests, weather, geography, landscape), available data, atmospheric conditions and other factors associated with the use of wireless networks, satellites and satellite data. By entering into this agreement, the Buyer acknowledges the results it may obtain, may not be accurate, timely or reliable. Additionally, the GPS is operated by the United States Government which is solely responsible for its accuracy and maintenance. The Government’s system is subject to changes which could affect the accuracy and performance of all GPS parts of the Devices, including the Synodic Products.
XV. LIMITATION OF LIABILITY
Synodic total liability on any claim for loss or damage arising out of, connected with, or resulting from an order, or from the performance or breach of this Agreement, or from the manufacture, sale, delivery, repair, replacement or use of any Device, Product or Service rendered, covered by or furnished under an order, that gives rise to the claim, shall in no case exceed the price paid for the purchased Device(s) in issue, or the price of repair or replacement, and the amount paid for the Service(s) rendered in connection to that specific Device(s) in the year in which such liability arose.
To the maximum extent permitted by law, in no event and under any circumstances shall Synodic be liable for any actions or claims of the Customer for direct, indirect, incidental, special, punitive or consequential damages, including but not limited to:
Synodic specifically does not warrant that it will be able to:
If any purchased Device is damaged or lost while in Synodic custody, the liability of Synodic will be limited to the cost of repair or replacement of the affected Device.
The remedies set forth herein shall be Customer’s sole and exclusive remedies under any Applicable Legal Instruments, including the ELD Master Purchase Agreement. The foregoing limitation shall not apply to or replace any statutory liability for intentional or gross negligent acts and/or omissions of Synodic.
XVI. FORCE MAJEURE
Except the obligation to pay the Price, neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation, where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party. Such causes shall include, without limitation, epidemics or pandemics, storms, floods, other acts of nature or acts of God, wild fires, explosions, riots, war or civil disturbance, strikes and other labor disputes, embargoes, export control laws, delays in transportation and inability to obtain labor, supplies or manufacturing facilities, including material shortages or delays in deliveries to Synodic by its suppliers. In the event that any force majeure event shall prevent Synodic from being able to supply Products to all of its customers, Synodic shall be entitled to allocate its available supply of Products among its customers in such proportions as Synodic, in its sole discretion, shall deem appropriate.
XVII. CONFIDENTIALITY
During the purchase-sale relationship between the Buyer and Synodic, and during the rendering of Services by Synodic for any contractual Term, the Buyer may receive Confidential Information from Synodic. The Buyer acknowledges and agrees that any such Confidential Information is proprietary to Synodic. The Buyer shall hold the Confidential Information in strict confidence and shall not disclose the same to any other person, firm or corporation, nor use the Confidential Information, except as required to perform its obligations under this Agreement. The Buyer shall not copy or reverse engineer any Product. The foregoing obligation shall not apply to any information that Synodic makes publicly available.
XVIII. TRADEMARKS
All Products sold to Buyer shall bear Synodic trademarks (such as Synodic ELD™), whether registered or in process of registration. Buyer shall not remove, conceal or alter any such trademarks. Buyer acknowledges and agrees that this Agreement gives the Buyer no rights in Synodic trademarks, whether registered or in course of registration, except that, in the event that the Buyer is authorized to resell or distribute Synodic products, Synodic grants the Buyer a limited, non-exclusive license during the period of Buyer’s business relationship with Synodic to reproduce Synodic trademarks in advertisements and other promotional materials relating to the Products in accordance with such standards for use of its trademarks as may be established from time to time by Synodic. Such license shall expire immediately upon the expiration or termination of Buyer’s business relationship with Synodic in particular upon the expiration of any Term of any agreement and/or by contractual Termination. All goodwill arising from Buyer’s use of Synodic trademarks shall inure solely to the benefit of Synodic. All advertisements and other promotional materials using Synodic trademarks prepared by Buyer shall include an appropriate notice indicating that such trademarks are the property of Synodic. Buyer shall not use Synodic trademarks or name as part of its corporate or business name, provided that the Buyer, if authorized by Synodic, may identify itself as an authorized Buyer of Synodic.
XIX. INDEMNIFICATION
The Buyer agrees to indemnify, defend and hold harmless Synodic from and against any third-party claims, suits, actions, liabilities, damages, losses, demands, costs and expenses (including reasonable trial costs and fees for legal services) arising out of:
In the event informed and written consent has not been obtained from any of the persons required to provide their consent with respect to collection, transmission and processing of vehicle and personal information and data, the Buyer shall indemnify, defend, and hold harmless the Seller against any claims, actions, applications, commenced by any third party, whether a driver, a Governmental agency, or any other individual or legal person, in connection to the breach of any privacy laws of any jurisdiction, arising from or in connection to the purchased Product(s).
For the application of this Section, a third-party will include the Customer’s employees, agents, directors, officers, and licensees.
In the event any Product to be provided under an Order is made in accordance with drawings, samples or manufacturing specifications, logo, designs, trademark, service mark, Software source code, provided or designated by the Buyer and not by Synodic, the Buyer agrees to defend, indemnify and hold Synodic harmless from and against any/all third-party claims, suits, actions, liabilities, damages, losses, demands, costs and expenses (including reasonable attorneys’ fees) arising out of any actual or alleged infringement of patent, copyright, trademark infringement or any other intellectual property infringement, with respect to such drawings, samples or manufacturing specifications, logo, designs, trademark, service mark, Software source code, and any other components of intellectual property.
XX. INSTALLATION AND TESTING
The Customer acknowledges and agrees to:
All costs associated to the installation and testing are Customer’s responsibility.
XXI. EXPORT CONTROL
The Buyer agrees to comply with such restrictions and not to export or re-export the Products to countries or persons prohibited under export control laws. By purchasing any Product on the Website, the Customer represents and warrants it is not in a country where such export is prohibited and that the Customer or the acquired Products are not on the Canadian Export Control List, the Canadian Area Control List or the U.S. Commerce Department's Table of Denial Orders or the U.S. Treasury Department's list of Specially Designated Nationals. The Customer is solely responsible for compliance with the laws of its domestic jurisdiction regarding the import, export, or re-export of the products.
XXII. SEVERABILITY
If any part of these ELD Master Sale Agreement or other Applicable Legal Instrument is found to be unenforceable as a matter of law, all other parts of shall be unaffected and shall remain in force.
XXIII. APPLICABLE LAW
If the delivery of Devices and the Services are rendered to an individual, corporation or other legal person for operations or business carried on the territory of the United States of America, the 1980 United Nations Convention on Contracts for the International Sale of Goods shall apply to this Master Sale Agreement.
Except when mandatory domestic legislation provide otherwise, all legal issues arising from or related to the purchase of the Product will be construed in accordance with and determined by the laws of Ontario applicable to contracts entered into, and the laws of Canada when mandatory federal laws are applicable. By placing an order on Synodic website, the Buyer agrees that the exclusive forum for any claims or causes of action arising out of the Buyer use of Synodic Website or related to the use of the Product(s) are Ontario Courts or Canadian Federal Courts, as the case may be. The Buyer hereby irrevocably waives, to the fullest extent permitted by law, any objection that the Buyer may have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
XXIV. ENTIRETY
This Agreement is the complete and exclusive agreement between the Buyer and Synodic regarding the purchase of Devices and supersedes all prior agreements and understandings, whether established by practice, policy or precedent. Synodic hereby expressly rejects any terms contained in any purchase order or other document or communication, issued by Buyer that are different from, conflict with, modify and/or add to this Agreement and any Applicable Legal Instrument(s). This Agreement and any Applicable Legal Instrument(s) cannot be modified or amended in any manner unless agreed in writing and signed by an authorized representative of Synodic. Any oral understandings are expressly excluded from this Agreement.
Synodic shall not be deemed to have waived any term or condition in this Agreement and any Applicable Legal Instrument if it fails to object to any additional or conflicting provisions appearing on, incorporated by reference in, or attached to Buyer’s purchase order form or other document received.
XXV. SURVIVAL
All provisions in this agreement and in any other Applicable Legal Instrument pertaining to Representations and Warranties, Warranty Exclusions, Limitation of Liability, Indemnification, and obligations to pay the amounts owed by the Buyer and Subscriber will survive the termination of this agreement or other Applicable Legal Instrument.
Failure by Synodic to enforce a right does not result in waiver of such right. Buyer may not assign or transfer its rights under these ELD Master Purchase Agreement or any of the Applicable Legal Instruments. Any failure by Synodic to assert all or any of Seller rights upon Buyer breach of these any terms, conditions, clauses or provisions of the ELD Master Sale Agreement or any other Applicable Legal Instruments shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver by Synodic be implied from the acceptance of any payment. Such waiver will arise only from an express written waiver signed by a duly authorized Synodic representative. No waiver of any right shall extend to or affect any other right we may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
ELD LICENSING AND SERVICE AGREEMENT
Please read this agreement carefully before accepting it and ordering.
I. THE PARTIES
This is an agreement between you, a user of our Services, or an employer of the user(s), individually or collectively referred to as the “Customer” or “Licensee” or “You”,
And
Synodic Inc. (“Synodic” or “Provider” or “Licensor” or “We”) a duly incorporated Ontario business corporation, for the subscription and provision of Services, and the licence to use such Services and any associated Software, that constitute a part of the Synodic ELD™ package of Devices and Services (the “Product”).
II. DEFINITIONS
For the purposes of this Agreement and any referenced legal instruments, the following words shall have the corresponding meanings assigned to them:
III. APLICABLE LEGAL INSTRUMENTS
By finalizing this order, the Customer expressly acknowledges and agrees to be bound and abide by the following Applicable Legal Instruments:
The Buyer further acknowledges and agrees that non-compliance with any of terms, conditions, or any clauses of any of the above Applicable Legal Instruments may, at Synodic sole discretion, represent a breach of all legal instruments governing the purchase of the Product.
And the Buyer further acknowledges and agrees that it is the Buyer’s obligation to review from time to time, the then-current versions of the Applicable Legal Instruments provided on Synodic website.
IV. TERM
This agreement is for a term of one year commencing on the day when the Notice of Order Acceptance was issued to the Customer. The agreement shall renew automatically for one year at the end of the initial Term, and any following successive Terms, unless either the Provider or the Customer shall provide at least one thirty (30) days notice of termination to the other party, in accordance with the Section XVII herein.
V. NOTICE
Synodic may give notice to the Customer by email, text message, or other electronic means of communications, as applicable, or by written communication sent by registered mail to Customer address on record. It is Customer’s responsibility to update and keep accurate identification information on its web account opened with Synodic.
The Customer acknowledges and agrees that all its identification information existent on its web account opened with Synodic at any moment (e.g.: phone, business address, email) are current and any notice sent by Synodic to any address or phone number on record is valid notice for all purposes related to the transactions pertaining to the Product.
The Customer may give notice to Synodic by email sent to the email address eld@synodicinc.com or in writing by registered mail sent to: Synodic Inc., 1 Hagersville Court, Toronto, ON M9C 4A2
VI. ACCOUNT INFORMATION
For any change of its account information, Customer must use the last versions of the Username and Password that were chosen or assigned during the registration or ordering process. It is Customer responsibility to safeguard the Username and Password. The Provider will not be responsible or liable in any way or manner for any unauthorized use or misuse of Customer Username and Password or other authentication information on record.
VII. SERVICES
When Synodic will send the Customer a Notice of Order Acceptance, by email or otherwise, validating that the order has been accepted, as described in Section III of the ELD Master Purchase Agreement, the ELD Licensing and Service agreement is conditionally formed.
The complete enforceability of the ELD Licensing and Service agreement commences when two conditions are met: (1) the installation of the Software was completed as per the Specifications, and (2) the testing of each Service was completed, meaning the Customer was able to communicate data and the Provider was able to receive initial data to be stored on Provider’s server.
VIII. LICENSE
The Provider hereby grants to Licensee a limited, revocable, non-sublicensable, non-transferable,
non-exclusive right to use any pre-selected and subscribed Service(s) and any associated Software, (the “License”) in accordance with this Agreement and Specifications, and subject to the payment of the Service Fees accepted and undertaken by the Licensee for the Services rendered by the Provider.
The License also allows for Licensee and any person authorized by Licensee to access remotely and use the Synodic website for the Synodic ELD™ Product, currently located at http://eld.synodicinc.com. for Licensee’s business use, and in accordance with this Agreement and Specifications.
The Licensee acknowledges and agrees that the Provider may from time to time improve or update the Services and/or Software, and may cause Software updates to be automatically installed with or without prior notification, or provide access to updates through Synodic website. The Licensee hereby acknowledges and agrees to such automatic installations and agrees to use only the updated version once it has been installed, and the Licensee hereby allows Synodic to send to the Licensee any notices, changes, updates, improvements, upgrades, by email, cellular phone, or other means of communication, free of any charge.
IX. LIMITATION OF LICENCE
The Products, Devices, Services, Software are protected by copyright, trademark, and other intellectual property rights.
Except for the rights expressly granted to the Licensee under this Agreement, and notwithstanding any reference to the purchase of the Device(s), any and all rights of ownership, title and interest, (including all copyrights, trademarks, service marks, patents, innovations, trade secrets, other intellectual property rights and other proprietary rights) and any other rights in the Product(s), Service(s), Software, Specifications, and the Synodic website, and any copies thereof (regardless of form of recording) are and shall remain exclusively owned by Synodic. Unless expressly worded, nothing provided herein can be construed to mean a transfer, conveyance or grant of exclusive right to the Licensee of any ownership right, title or interest in the Products, Devices, Services or Software, or to any copy thereof.
The Licensee agrees that it will not, either during this Agreement or after its termination contest or challenge Synodic ownership, title or interest of any intellectual property or other proprietary rights pertaining to the Service, Software or Products.
The Licensee acknowledges and agrees that during the Term of this Agreement, and after its lapse or Termination, the Licensee is strictly prohibited to:
X. DATA COLLECTION, TRANSFER, AND PROCESSING
The Customer grants Provider the permission, free of any charge or fee, to collect, transmit, and process data and information from the motor vehicles using the purchased Devices, in connection to and for the purpose of supply of Services, and to process, transmit, receive and maintain communication of data or information by electronic means with the Devices, vehicle drivers, Customer dispatch, or Customer management, as the case may be.
Synodic does not have and claims no ownership of any vehicle data and information that is generated by the Customer, is associated with, and originates from the purchased and installed Devices, and is collected, transmitted to, or processed by Synodic for the provision of Service(s). Synodic will process and transmit vehicle data and information to provide, maintain and improve the Products and perform obligations under this Agreement and applicable law. For the purpose of supplying the Service(s), from time to time, if required by law or when such action is businesswise necessary, on a confidential basis, Synodic may request data or information from databases maintained by third party providers, or store Customer data or information on the servers of such third parties.
Customer acknowledge and agree that any feedback, input, recommendations, troubleshooting information or other similar information that is provided or made available by the Customer directly or indirectly through third party, may be used by Synodic to modify, enhance, maintain and improve the Products and shall become the exclusive property of Synodic without any obligation or payment to the Customer or any other third party.
Synodic agrees not to disclose data and information collected from the Customer except in the following cases:
Synodic shall have the right to use and reproduce Customer data solely to the extent necessary to provide the Service(s) and fulfill its obligations to Customer under this Agreement. The privacy rules applicable to the collection, transfer, and processing of information and data are governed by the Privacy Policy undertaken by the Customer in furtherance of this Agreement and any other Applicable Legal Instrument. However, for statistical and analytical purposes, in connection to the improvement of current Products and development of new Products, Synodic may compile, store, and use aggregated data and system usage information. Such aggregated data used by Synodic in this manner is no longer associated with a Device and the data or information generated by a motor vehicle. Synodic will not attempt to disaggregate the data or re-associate it with a device without the Customer’s consent or unless legally compelled to do so, or unless required for safety or troubleshooting purposes.
XI. REPRESENTATIONS AND WARRANTIES
The Customer represents and warrants that the information provided by the Customer for opening and operating an account, and for the purchase of any Device, licence of any Service and Software, or supply of any Product, are current, complete, and accurate, to the best of its knowledge, and any changes that may occur in the future will be promptly recorded on Provider’s website, in Customer’s account.
The Customer further represents and warrants that it had obtained consent, and will continue to obtain consent for future Terms, from any third-party individuals, including but not limited to its employees (drivers of motor vehicles) with respect to collection, transmission to, and processing of vehicle and personal information and data, by the Seller for the purpose of delivering the Services, regarding: (i) the purposes for which such third party’s personal information and data has been collected; (ii) the intended recipients or categories of recipients of such personal information and data; and (iii) how the third party individual can access and rectify the information and data recorded by Synodic.
The Provider warrants that it will provide the subscribed and paid Service(s) with reasonable care, at standards comparable with similar Services provided by other competitors in Ontario.
XII. LIMITED SERVICE WARRANTY
Except as provided in this Agreement, Synodic makes no representations or warranties, express or implied, including to maximum extent permitted by applicable law, any implied warranty of merchantability or fitness for a particular purpose, about the Service(s), or any associated Software, or any Product(s) licensed to, or acquired by the Customer from Synodic. The Provider does not warrant that the subscribed, purchased, licensed and paid Synodic Product(s), Service(s), or Software will: (a) work effective at all times; (b) will not require occasional upgrades or modifications; or (c) network–related changes and upgrades will not impact negatively the Customer operations. Synodic does not authorize anyone to make any warranties on its behalf and the Customer should not rely on third-party representations.
Further, Synodic does not warrant that the subscribed and paid Service(s) will be:
Further, Synodic does not warrant that it can perform the subscribed Service(s) if the Device(s) through which such Service(s) are rendered do not function correctly, become(s) defective or fail to work due to incorrect configuration, physical damage, network outage or extended power failure, interference with its content, or following suspension or termination of such Services or the Customer account.
XIII. LIMITATIONS AND EXCLUSIONS OF LIABILITY
The Customer acknowledges and agrees that the Provider’s sole and maximum liability and the Customer’s exclusive remedy with respect to any and all of Services subscribed and paid Service(s), and associated Software, is limited to the amount paid by the Customer to Synodic for the defective Service(s) and/or Software for the year in which such liability arose. For the sake of clarity, the liability will apply to each individual defective Service and/or Software and will be prorated to the period not exceeding the interval between last January 1st, and the day of the year when the liability arose.
The Customer assumes all risk and liability derived from the use of Product(s), Service(s) and associated Software. Further, by undertaking such risk and liability, the Customer recognizes and accepts that Synodic denies any liability for any and all direct, indirect, special, general, punitive, exemplary, aggravated, incidental or consequential damages or loss of any kind, whether foreseeable or unforeseeable, including but not limited to loss or of damage to property or to data, loss of contract, loss of economic advantage, loss of profits or anticipated profits, loss of savings, loss or goodwill, cost of capital, loss of business opportunities, or any other pecuniary, commercial, or economic loss or damage of any kind, arising out of the use of, inability to use, or defects of any Device, Service, Software, or Product, including Notices, incurred by the Customer or a third party, arising from or in connection to this Agreement or any Applicable Legal Instrument.
The Customer acknowledges and agrees that Synodic and any Third-Party Providers (such as wireless phone companies, or internet providers) cannot guarantee the security of wireless or internet transmissions and will not be liable for any breach of security, damage or loss arising from or associated with the use of the Service or Software by the Customer.
The limitations, exclusions and disclaimers of this Agreement will apply regardless of the nature of the claim, cause of action, or demand, including breach of contract, tort (whether by negligence, gross negligence, or other non-intentional actions or omissions), strict liability, product liability, or any other legal or equitable theory and shall apply notwithstanding the failure of the essential purpose of this agreement or any remedy contained herein.
XIV. RELATIONS WITH THIRD PARTIES AND INSURANCE DISCLAIMER
The Customer acknowledges and agrees that Synodic uses, and Synodic ELD™ is based on, among others, standard cellular wireless commercial transmissions and internet services that facilitate the communications with the purchased Devices. Therefore, the Devices must be within wireless telephony coverage to communicate.
The Customer further acknowledges and agrees that Synodic is not a Third-Party Provider as defined hereinabove, and that Synodic may contract with Third-Party Providers from time to time for support and assistance in connection with the provision of the Service(s). As a result of such contracts entered into by Synodic and Third-Party Provider(s), Synodic may be subject to disclaimers, obligations of indemnify, defend and hold harmless the Third-Party Provider(s) for any Service(s) provided to the Customer.
Consequently, the Customer acknowledges and agrees that Synodic and Third-Party Providers are not insurers and any amounts paid to Synodic hereunder are consideration for the Service(s) provided by Synodic, not insurance premiums paid by Customer for indemnification or insurance coverage in case of loss or damage to Customer property or for injury of any employee, director, officer, agent or licensee of the Customer. In the event of any loss, damage, or injury of any person or property monitored by the subscribed and paid Service(s), the Customer acknowledges and agrees to have recourse and look only to its insurer to recover any damages or losses of any kind, and the Customer waives all rights of subrogation against Synodic and the Third-Party Providers that any insurer or other person may have as a result of paying any claim for loss, damage or injury to any person, including the Customer, its employees, directors, officers, agents, or licensees. The Customer will not bring any claim or action against any Third-Party Provider arising from Customer’s use of the Service(s).
XV. INDEMNIFICATION
The Customer agrees to indemnify, defend, and hold harmless Synodic from and against any third-party claims, suits, actions, liabilities, damages, losses, demands, costs, and expenses (including reasonable trial costs and fees for legal services) arising out of:
In the event consent has not been obtained from any of the persons required to provide their consent with respect to collection, transmission and processing of vehicle and personal information and data, the Customer shall indemnify, defend, and hold harmless the Provider against any claims, actions, applications, commenced by any third party, whether a driver, a Governmental agency, or any other individual or legal person, in connection to the breach of any privacy laws of any jurisdiction, arising or in connection to the purchased Product(s).
For the application of this Section, a third party will include but will not be limited to the Customer’s employees, agents, directors, officers, and licensees.
The Customer shall indemnify, defend and hold harmless Synodic against any and all personal claims, including libel, slander, arising in any way from an individual who is a director, officer, employee, and agent of the Customer, in connection to the use of any Product, Service and associated Software.
XVI. FEES AND PAYMENT
By entering into this Agreement, the Licensee agrees to establish an online account with Synodic and use that account for receiving subscribed Services. As consideration for the subscribed Services, the Licensee agrees to pay in full a monthly Service Fee for the Term of the contract, in accordance with the pricing quotations provided on Synodic ELD™ webpage, at http://eld.synodicinc.com
Each monthly payment shall be made on the first day of the month for each current month. The monthly Service Fee shall be added to the purchase Price as provided in Section III of the ELD Master Purchase Agreement.
If the Customer uses data in excess of the Threshold level, Synodic will apply a monthly surcharge in accordance with the information provided on the Website. The surcharge will be included in the monthly Service Fee for the balance of each month from the day the data usage exceeded the Threshold.
All payments are done by pre-authorized credit card payment or pre-authorized bank wire transfer or internet transfer with email notification. The Licensee agrees to provide accurate and valid credit card or bank account information and authorization for such payments throughout the Term of this Agreement, and any other successive Terms. The Licensee authorizes the Provider, at any time and in Provider’s sole discretion, to make inquiries into Licensee’s credit history and to record the results of those credit inquiries on Licensee’s account file at Synodic.
XVII. TERMINATION
Synodic reserves the right, in its sole discretion, to unilaterally terminate this Agreement, suspend and/or terminate any Service or any licence granted under this Agreement, without notice and with immediate effect in the following circumstances:
The Provider may in its sole discretion give the Licensee a reasonable time to cure the breach, but such time is mutually understood not to exceed thirty (30) days from the date when the notice of breach is given by Synodic to the Licensee. This privilege to cure the breach does not apply to the breach of the obligation to pay the Price or Service Fees.
This Agreement may be terminated by either party with notice of termination when such notice is given by one party to the other at least thirty (30) days in advance.
Except to the extent agreed to in writing by the parties, upon the termination of this Agreement;
XVIII. ASSIGNMENT
The Licensee acknowledges and agrees that the licence for Service(s) and Software are for the Customer’s use only and the Customer may not assign, resell, sub-license, provide or supply the Service(s) and Software to another party.
XIX. CHANGES
The Customer acknowledges and agrees that from time to time, Synodic may, at its sole discretion:
XX. DOWNLOADING SOFTWARE AND TESTING
The Customer acknowledges and agrees to:
XXI. INTERPRETATION OF THE AGREEMENT
This Agreement shall be construed in accordance with the rules set in Section IV of the ELD Master Purchase Agreement.
XXII. EXPORT CONTROL
The Buyer agrees to comply with such restrictions and not to export or re-export the Products to countries or persons prohibited under export control laws. By purchasing any Product on the Website, the Customer represents and warrants it is not in a country where such export is prohibited and that the Customer or the acquired Products are not on the Canadian Export Control List, the Canadian Area Control List or the U.S. Commerce Department's Table of Denial Orders or the U.S. Treasury Department's list of Specially Designated Nationals. The Customer is solely responsible for compliance with the laws of its domestic jurisdiction regarding the import, export, or re-export of the products.
XXIII. SEVERABILITY
If any part of these ELD Licensing and Service Agreement or other Applicable Legal Instrument is found to be unenforceable as a matter of law, all other parts of shall be unaffected and shall remain in force.
XXIV. APPLICABLE LAW
Except when mandatory domestic legislation provide otherwise, all legal issues arising from or related to the supply of the Product(s), purchase of Device(s), and licensing of Service(s) and Software will be construed in accordance with and determined by the laws of Ontario applicable to contracts entered into, and the laws of Canada when mandatory federal laws are applicable. By placing an order on Synodic website, the Customer agrees that the exclusive forum for any claims or causes of action arising out of the Customer use of Synodic website or related to the use of the Product(s) are Ontario Courts or Canadian Federal Courts, as the case may be. The Customer hereby irrevocably waives, to the fullest extent permitted by law, any objection that the Customer may have to the determination of the venue of any such proceeding brought in such a court ,and any claim that any such proceeding has been brought in an inconvenient forum.
XXV. ENTIRETY
This Agreement is the complete and exclusive agreement between Synodic and the Customer regarding the licensing of Services and associated Software, and supersedes all prior agreements and understandings, whether verbal or in writing, established by practice, policy or precedent.
XXVI. SURVIVAL
All provisions in this agreement and in any other Applicable Legal Instrument pertaining to representations and warranties, warranty exclusions, limitation of liability, indemnification, obligations to pay the amounts owed by the Customer, intellectual property protection and ownership, assignment and sub-licensing a licensed rights, and confidentiality, will survive the termination of this Agreement or other Applicable Legal Instrument.
Failure by Synodic to enforce a right does not result in waiver of such right. Any failure by Synodic to assert all or any of the Provider rights upon the Customer breach of these any terms, conditions, clauses or provisions of the ELD Licensing and Service Agreement or any other Applicable Legal Instruments shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver by Synodic be implied from the acceptance of any payment. Such waiver will arise only from an express written waiver signed by a duly authorized Synodic representative. No waiver of any right shall extend to or affect any other right the Provider may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
ELD Master Purchase Agreement
Please read this agreement carefully before accepting it and ordering.
I. THE PARTIES
This is an agreement between you, whether a purchaser or any user on behalf of whom the purchaser is completing this purchase, collectively referred to as the “Buyer” or “Customer” or “Subscriber”,
And
Synodic Inc. a duly incorporated Ontario corporation, referred to as “Synodic” or “Seller” or “Provider” for the supply of the Synodic ELD™ package of goods and services, comprised of:
II. DEFINITIONS
For the purposes of this Agreement and any referenced legal instruments, the following words shall have the corresponding meanings assigned to them:
III. THE PURCHASE
The Buyer will purchase online the Product by completing the following successive steps:
After submitting an online order to Synodic, the Buyer will receive an order acknowledgement email. This email is confirmation of its submission and is not an acceptance of the order.
Acceptance of the Buyer’s order and the formation of a contract between The Buyer and Synodic will take place when we send the Buyer a Notice of Order Acceptance, by email or otherwise, validating that the order has been accepted. Conversely, Synodic reserves the right to reject any Order, or the Buyer may cancel any order before receiving the Notice of Order Acceptance. Further, the Products you have ordered will be shipped and delivered to the Buyer in accordance with Sections IX and X hereof. In case the order is not accepted, or it was cancelled it before the Product has been shipped to the Buyer, Synodic shall refund the payment in accordance with Section XI hereof.
The purchase means the Buyer becomes the owner of the Device(s) with the non-exclusive right to use the selected Services, and the non-exclusive right to use the preinstalled Software, but ownership of devices does not cover the delivery, installation and testing of the Product, which following the purchase are regulated by Section X hereinafter. If the Buyer plans to order in excess of 100 Devices and one or more Services, the Buyer may send an email to Synodic customer support department at eld@synodicinc.com and Synodic may agree on a different arrangement than the standard online Master Purchase Agreement.
Customer shall access its account and Service(s) using the browser and/or the purchased Hardware. Customer shall access the Synodic ELD™ package of goods and services through the Synodic website and by entering Customer’s account name and password. Customer will be solely responsible for any use of any account name and password. Synodic will not be held responsible in any manner for the use or misuse of any account name and/or password.
IV. APPLICABLE LEGAL INSTRUMENTS
By finalizing this purchase, the Buyer expressly acknowledges and agrees to be bound and abide by the Synodic ELD Master Purchase Agreement and each and all of the following legal instruments incorporated by reference, which individually and collectively govern the purchase of the Devices and the grant of the right to use of Service(s) and associated Software:
The Buyer expressly acknowledges and agrees that each Applicable Legal Instrument governs a specific subject-matter and has a specific object or scope. However, when necessary, all Applicable Legal Instruments will be construed collectively as a system, meaning:
When a provision regulating a particular conduct or fact is missing from the an Applicable Legal Instrument, any provision from another Applicable Legal Instrument will be applied by analogy to any other Applicable Legal Instrument (E.g.: if the ELD Master Purchase Agreement does not provide for a particular warranty, and such provision can be found in the ELD Licensing and Service Agreement, than, if possible, the provision from the ELD Licensing and Service Agreement shall be applied to the ELD Master Purchase Agreement);
When provisions with the same object, from different legal instruments, have contradictory meanings, the specialized provision shall take precedence over the general provision (E.g.: a provision pertaining to the licensing of Software from the ELD Licensing and Service Agreement shall prevail over provisions pertaining to licensing in other Applicable Legal Instrument);
When provisions with the same object, from different legal instruments, have concurring meanings, or prescribe complementary conducts, each provision will add to, or complete the other (E.g.: any limitation of liability of the ELD Master Purchase Agreement will add or complete any limitation of liability of the ELD Licensing and Service Agreement).
The Buyer further acknowledges and agrees that non-compliance with any of terms, conditions, or any clauses of any of the above Applicable Legal Instruments will represent a breach of all legal instruments governing the purchase of the Product, Device(s) or Service(s);
And the Buyer further acknowledges and agrees that it is the Buyer’s obligation to review from time to time, the then-current versions of the Applicable Legal Instruments provided on the Website.
Synodic catalog or display of Services, Devices and price lists do not constitute an offer. By placing an order to us on the website or otherwise, the Buyer makes an offer to purchase the Product. Only if Synodic accepts the order, the purchase of the Product becomes a binding agreement between the Buyer and Synodic. Synodic reserves the right to reject or refuse any order submitted for its acceptance and will not be liable to the Buyer or to anyone else for such refusal or rejection.
All sales of Product(s) are final.
V. CHANGES TO THE APPLICABLE LEGAL INSTRUMENTS
Synodic reserves the right to change or amend any of the Applicable Legal Instruments from time to time, without consent of Buyer, with minimum seven (7) days prior notice given to the Buyer, by changing or amending them on the Website.
Such changes or amendments will be binding the Buyer for the rest of the current Term of the ELD Master Purchase Agreement or other Applicable Legal Instruments from the date when they come into force. If the Term is extended, or in case of successive Terms, the latest applicable changes or amendments displayed on Synodic website will automatically apply to the Buyer and the Buyer will be bound to comply with the latest form of any of the Applicable Legal Instruments.
For the sake of clarity, Synodic reserves also the right to change the prices and fees for the Hardware, Services, and/or the Product(s), without consent of Buyer, as well as the right to inform the Buyer of any changes operated by third parties on taxes, duties, levies, fees and/or charges, which are applied by Synodic on behalf of, or in connection to such third parties, with minimum seven (7) days prior notice given to the Buyer, and by changing them on the Website. Any changes of Prices, Service Fees, or their components will become mandatory applicable to the-then current Applicable Legal Instruments and will be binding the Buyer from the date when the changes will come into effect, and not retroactively for past payments.
VI. PRICE AND PAYMENT
Products shall be sold to the Buyer at the prices quoted to the Buyer upon acceptance of each order. Applicable HST, GST and/or other taxes, (based on the bill-to address and the sales tax rate in effect at the time of order of the Product), duties, levies, as well as shipping, handling, and insurance charges, and other mandatory charges required by third parties (e.g. Government, Courier, etc.), are extra and will be included in the payable Price. However, the Buyer will have the possibility to see the each required payment, as well as the Price and Service Fees for the purchase and licensing of the Product before deciding to make the payment and/or undertake the monthly Service Fees.
Prices are stated and payments shall be made in Canadian dollars ($CAD). Unless other payment terms are previously agreed in writing by Synodic, the Buyer shall make full payment of the Price for the month when the Product is ordered. The payment of the Service Fees will be done monthly, as per the ELD Licensing and Service Agreement.
VII. BREACH OF OBLIGATION TO PAY THE PRICE
No purchase of Hardware is completed until the payment of the Price has been made in full. If for whatever reason or method, the Buyer withholds payment in full or in part for the purchase Price, or in the event the Buyer does not make timely payments of the Service Fees for the Services provided in accordance to any other Applicable Legal Instrument, Synodic may, in addition to all other remedies provided at law, either: (1) refuse to deliver/provide the Product(s); (2) declare Buyer’s performance in breach and immediately terminate all Agreements for default; (3) repossess the goods for which payment has not been made; (3) charge interest on the delinquency at the rate of two percent (2%) per month for each month or part thereof of delinquency in payment, plus applicable storage charges, or inventory carrying charges, and recover all costs of collection including reasonable attorney’s fees; (4) sue for damages; and (5) at Synodic option, combine any of the above rights and remedies as provided by law.
VIII. TAXES, CUSTOM DUTIES, LEVIES AND OTHER CHARGES
Buyer shall be responsible for, and shall pay, applicable HST, GST and/or other taxes, levies, and any export or import duties that may be applicable to the sale and/or delivery of the Product(s). Buyer shall also be responsible for and shall pay any other fees and charges in connection to the delivery by Courier, which will be charged by Synodic and paid further to the Courier. Accordingly, Synodic reserves the right to revise its Price after the execution of an order between the parties to include any and all changes in taxes or duties that may become due hereunder and Synodic may invoice the Buyer for said additional amount. This clause shall survive the acceptance and complete performance of an order.
IX. THE DELIVERY
Your purchased Hardware with pre-installed Software will be delivered by Courier. Synodic will use the Courier’s standard terms and conditions for shipping and means of delivery. Any delivery date stated in any document (including an order) is approximate only and shall not constitute any guarantee of delivery on any particular date.
Delivery to the Courier shall be Free on Board (FOB) at Synodic place of business for all Synodic ELD™ Products. The Buyer hereby agrees that INCOTERMS FOB will apply to any means of transportation provided by a Courier, whether motor vehicle, vessel, airplane, or other. Title and risk of loss or damage shall pass to Buyer when the purchased and licensed Product(s) are delivered by Synodic to the Courier at the FOB point, unless otherwise agreed upon in writing by Synodic. Synodic reserves the right to add additional charges for the reasonable cost of storing the Hardware in the event of refusal by Buyer to take delivery of Products Ordered. Freight/transportation charges shall be pre-paid by the Buyer when paying online the aggregated price under this Agreement.
X. ACCEPTANCE OF FINAL DELIVERY, INSTALLATION AND TESTING
The Buyer shall carefully inspect the Products upon final delivery from the Courier to the Buyer and maintain all original packaging upon receiving the Product(s) until it has been installed and is found to be in proper working order. If the Product(s) arrive to Buyer defective at final delivery or if the Product(s) appear not to comply with applicable Synodic Specifications, the Buyer shall promptly notify Synodic of such defects, or noncompliance, along with the reason for such noncompliance, and give Synodic a reasonable opportunity to correct any such defect or noncompliance. The Buyer shall be deemed to have accepted any Products delivered hereunder and to have waived any such noncompliance in the event Synodic does not receive written notification of noncompliance within fifteen (15) days after the Buyer takes custody of the delivered Products.
The Buyer is responsible for the installation and testing of each Device and/or Product that it purchased using Synodic online Specifications and Instructions available at: http://eld.synodicinc.com
XI. REFUND AND REPLACEMENT
The Buyer is entitled to a full refund in the following circumstances:
If one or more of the Product(s), Hardware, Software, or any parts thereof, are found non-compliant or defective when installed and tested, the Buyer may request their replacement contacting Customer Support at eld@synodicinc.com The non-compliant or defective Hardware or any parts thereof, must be shipped to Synodic on Buyer’s expense. Once received, Synodic will ship to the Buyer new Hardware or any parts thereof for replacement on Synodic expense. For Software, the Provider will make available corrected versions on the website or communicate such corrected versions on Provider’s expense, unless the defective Software is incorporated in the defective Device, in which the former rules on Hardware replacement apply.
All Devices or parts thereof must be returned in the original and undamaged condition, including all original packaging and printed copies online order(s). If the product is not returned in “As New” condition, a refund or replacement may not apply.
XII. REPRESENTATIONS AND WARRANTIES
By entering into this Agreement, the Buyer represents and warrants the following:
Synodic warrants to the Buyer, that if a Product is found to be defective in complying with its functionality parameters, within one (1) year
from the date of purchase, Synodic shall, at its sole and absolute discretion, repair or replace it with a new or reconditioned Product of the same or more recent model in exchange for the defective Product. This limited warranty applies only if proof of purchase is presented at the time a claim is made, by shipping the defective Device with a copy of the payment receipt.
XIII. WARRANTY EXCLUSIONS
Except as expressly provided herein or in other Applicable Legal Instrument, no other Warranties shall apply, whether express or implied, including, but not limited to any Warranties of Merchantability of Fitness for a Particular Purpose. The Seller does not warrant or represent that Synodic Product(s) will meet Buyer’s Requirements, or will properly work in combination with any hardware, software or service provided by third parties, or that the Device(s), Service(s) or Products(s) will be uninterrupted, work in a timely manner, or free of errors. Further, the Seller does not represent and warrant that the results that may be obtained through the use of Services or the accuracy or reliability of any information obtained through the Website or notification system will reach the Buyer’s expectations. The Customer understands and agrees that any information and/or data downloaded or otherwise obtained through the use of the Website or notification system is done at Customer’s own discretion and risk, and that any remedial action is solely Customer’s responsibility.
The one-year limited warranty of the Device provided in Section XII herein shall not apply, and Synodic shall not be responsible or held liable to repair or replace the allegedly defective Device for:
The replacement of the Device specified herein shall be the sole and exclusive remedy to which Synodic is obligated and to which the original Purchaser is entitled. Notwithstanding the generality of the foregoing, Synodic shall not be liable for reimbursement of the original purchase price, loss of use of any vehicle or vessel, loss of time, inconvenience, installation charges, towing charges, or any damages, as herein provided in Section XV.
XIV. PRODUCT CHANGES
At all times, Synodic reserves the right in its sole discretion, without consent of Buyer, to make changes, additions or improvements to the Products ordered or to discontinue any Products.
The Buyer hereby understands and accepts that the Product is not the same as a cell phone and does not operate as effectively as or replace a cell or mobile phone. It is the Buyer responsibility as well as its drivers, other employees, agents, or contractors, to charge, maintain, ensure proper functionality, and whenever necessary, manually input the data required for the daily operation of the Product.
Wireless ELD devices use radio transmissions to convey the data to or from a computer or wireless device. This means that if the Product (once a Synodic service plan is set up) is not in range of a cell tower, the Device will not be able to properly transmit the data. However, the Device may still be collecting and storing information from the motor vehicle or network satellites, so once the Device comes back into cell range the stored data may automatically transmitted to Synodic, upload onto the Buyer’s account, and if necessary, be accessed by the driver or the Buyer. The availability and quality of the Device’s ability to communicate depends on, including without limitation, network capacity, environmental conditions (such as structures, buildings, forests, weather, geography, landscape), available data, atmospheric conditions and other factors associated with the use of wireless networks, satellites and satellite data. By entering into this agreement, the Buyer acknowledges the results it may obtain, may not be accurate, timely or reliable. Additionally, the GPS is operated by the United States Government which is solely responsible for its accuracy and maintenance. The Government’s system is subject to changes which could affect the accuracy and performance of all GPS parts of the Devices, including the Synodic Products.
XV. LIMITATION OF LIABILITY
Synodic total liability on any claim for loss or damage arising out of, connected with, or resulting from an order, or from the performance or breach of this Agreement, or from the manufacture, sale, delivery, repair, replacement or use of any Device, Product or Service rendered, covered by or furnished under an order, that gives rise to the claim, shall in no case exceed the price paid for the purchased Device(s) in issue, or the price of repair or replacement, and the amount paid for the Service(s) rendered in connection to that specific Device(s) in the year in which such liability arose.
To the maximum extent permitted by law, in no event and under any circumstances shall Synodic be liable for any actions or claims of the Customer for direct, indirect, incidental, special, punitive or consequential damages, including but not limited to:
Synodic specifically does not warrant that it will be able to:
If any purchased Device is damaged or lost while in Synodic custody, the liability of Synodic will be limited to the cost of repair or replacement of the affected Device.
The remedies set forth herein shall be Customer’s sole and exclusive remedies under any Applicable Legal Instruments, including the ELD Master Purchase Agreement. The foregoing limitation shall not apply to or replace any statutory liability for intentional or gross negligent acts and/or omissions of Synodic.
XVI. FORCE MAJEURE
Except the obligation to pay the Price, neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation, where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party. Such causes shall include, without limitation, epidemics or pandemics, storms, floods, other acts of nature or acts of God, wild fires, explosions, riots, war or civil disturbance, strikes and other labor disputes, embargoes, export control laws, delays in transportation and inability to obtain labor, supplies or manufacturing facilities, including material shortages or delays in deliveries to Synodic by its suppliers. In the event that any force majeure event shall prevent Synodic from being able to supply Products to all of its customers, Synodic shall be entitled to allocate its available supply of Products among its customers in such proportions as Synodic, in its sole discretion, shall deem appropriate.
XVII. CONFIDENTIALITY
During the purchase-sale relationship between the Buyer and Synodic, and during the rendering of Services by Synodic for any contractual Term, the Buyer may receive Confidential Information from Synodic. The Buyer acknowledges and agrees that any such Confidential Information is proprietary to Synodic. The Buyer shall hold the Confidential Information in strict confidence and shall not disclose the same to any other person, firm or corporation, nor use the Confidential Information, except as required to perform its obligations under this Agreement. The Buyer shall not copy or reverse engineer any Product. The foregoing obligation shall not apply to any information that Synodic makes publicly available.
XVIII. TRADEMARKS
All Products sold to Buyer shall bear Synodic trademarks (such as Synodic ELD™), whether registered or in process of registration. Buyer shall not remove, conceal or alter any such trademarks. Buyer acknowledges and agrees that this Agreement gives the Buyer no rights in Synodic trademarks, whether registered or in course of registration, except that, in the event that the Buyer is authorized to resell or distribute Synodic products, Synodic grants the Buyer a limited, non-exclusive license during the period of Buyer’s business relationship with Synodic to reproduce Synodic trademarks in advertisements and other promotional materials relating to the Products in accordance with such standards for use of its trademarks as may be established from time to time by Synodic. Such license shall expire immediately upon the expiration or termination of Buyer’s business relationship with Synodic in particular upon the expiration of any Term of any agreement and/or by contractual Termination. All goodwill arising from Buyer’s use of Synodic trademarks shall inure solely to the benefit of Synodic. All advertisements and other promotional materials using Synodic trademarks prepared by Buyer shall include an appropriate notice indicating that such trademarks are the property of Synodic. Buyer shall not use Synodic trademarks or name as part of its corporate or business name, provided that the Buyer, if authorized by Synodic, may identify itself as an authorized Buyer of Synodic.
XIX. INDEMNIFICATION
The Buyer agrees to indemnify, defend and hold harmless Synodic from and against any third-party claims, suits, actions, liabilities, damages, losses, demands, costs and expenses (including reasonable trial costs and fees for legal services) arising out of:
In the event informed and written consent has not been obtained from any of the persons required to provide their consent with respect to collection, transmission and processing of vehicle and personal information and data, the Buyer shall indemnify, defend, and hold harmless the Seller against any claims, actions, applications, commenced by any third party, whether a driver, a Governmental agency, or any other individual or legal person, in connection to the breach of any privacy laws of any jurisdiction, arising from or in connection to the purchased Product(s).
For the application of this Section, a third-party will include the Customer’s employees, agents, directors, officers, and licensees.
In the event any Product to be provided under an Order is made in accordance with drawings, samples or manufacturing specifications, logo, designs, trademark, service mark, Software source code, provided or designated by the Buyer and not by Synodic, the Buyer agrees to defend, indemnify and hold Synodic harmless from and against any/all third-party claims, suits, actions, liabilities, damages, losses, demands, costs and expenses (including reasonable attorneys’ fees) arising out of any actual or alleged infringement of patent, copyright, trademark infringement or any other intellectual property infringement, with respect to such drawings, samples or manufacturing specifications, logo, designs, trademark, service mark, Software source code, and any other components of intellectual property.
XX. INSTALLATION AND TESTING
The Customer acknowledges and agrees to:
All costs associated to the installation and testing are Customer’s responsibility.
XXI. EXPORT CONTROL
The Buyer agrees to comply with such restrictions and not to export or re-export the Products to countries or persons prohibited under export control laws. By purchasing any Product on the Website, the Customer represents and warrants it is not in a country where such export is prohibited and that the Customer or the acquired Products are not on the Canadian Export Control List, the Canadian Area Control List or the U.S. Commerce Department's Table of Denial Orders or the U.S. Treasury Department's list of Specially Designated Nationals. The Customer is solely responsible for compliance with the laws of its domestic jurisdiction regarding the import, export, or re-export of the products.
XXII. SEVERABILITY
If any part of these ELD Master Sale Agreement or other Applicable Legal Instrument is found to be unenforceable as a matter of law, all other parts of shall be unaffected and shall remain in force.
XXIII. APPLICABLE LAW
If the delivery of Devices and the Services are rendered to an individual, corporation or other legal person for operations or business carried on the territory of the United States of America, the 1980 United Nations Convention on Contracts for the International Sale of Goods shall apply to this Master Sale Agreement.
Except when mandatory domestic legislation provide otherwise, all legal issues arising from or related to the purchase of the Product will be construed in accordance with and determined by the laws of Ontario applicable to contracts entered into, and the laws of Canada when mandatory federal laws are applicable. By placing an order on Synodic website, the Buyer agrees that the exclusive forum for any claims or causes of action arising out of the Buyer use of Synodic Website or related to the use of the Product(s) are Ontario Courts or Canadian Federal Courts, as the case may be. The Buyer hereby irrevocably waives, to the fullest extent permitted by law, any objection that the Buyer may have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
XXIV. ENTIRETY
This Agreement is the complete and exclusive agreement between the Buyer and Synodic regarding the purchase of Devices and supersedes all prior agreements and understandings, whether established by practice, policy or precedent. Synodic hereby expressly rejects any terms contained in any purchase order or other document or communication, issued by Buyer that are different from, conflict with, modify and/or add to this Agreement and any Applicable Legal Instrument(s). This Agreement and any Applicable Legal Instrument(s) cannot be modified or amended in any manner unless agreed in writing and signed by an authorized representative of Synodic. Any oral understandings are expressly excluded from this Agreement.
Synodic shall not be deemed to have waived any term or condition in this Agreement and any Applicable Legal Instrument if it fails to object to any additional or conflicting provisions appearing on, incorporated by reference in, or attached to Buyer’s purchase order form or other document received.
XXV. SURVIVAL
All provisions in this agreement and in any other Applicable Legal Instrument pertaining to Representations and Warranties, Warranty Exclusions, Limitation of Liability, Indemnification, and obligations to pay the amounts owed by the Buyer and Subscriber will survive the termination of this agreement or other Applicable Legal Instrument.
Failure by Synodic to enforce a right does not result in waiver of such right. Buyer may not assign or transfer its rights under these ELD Master Purchase Agreement or any of the Applicable Legal Instruments. Any failure by Synodic to assert all or any of Seller rights upon Buyer breach of these any terms, conditions, clauses or provisions of the ELD Master Sale Agreement or any other Applicable Legal Instruments shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver by Synodic be implied from the acceptance of any payment. Such waiver will arise only from an express written waiver signed by a duly authorized Synodic representative. No waiver of any right shall extend to or affect any other right we may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
ELD LICENSING AND SERVICE AGREEMENT
Please read this agreement carefully before accepting it and ordering.
I. THE PARTIES
This is an agreement between you, a user of our Services, or an employer of the user(s), individually or collectively referred to as the “Customer” or “Licensee” or “You”,
And
Synodic Inc. (“Synodic” or “Provider” or “Licensor” or “We”) a duly incorporated Ontario business corporation, for the subscription and provision of Services, and the licence to use such Services and any associated Software, that constitute a part of the Synodic ELD™ package of Devices and Services (the “Product”).
II. DEFINITIONS
For the purposes of this Agreement and any referenced legal instruments, the following words shall have the corresponding meanings assigned to them:
III. APLICABLE LEGAL INSTRUMENTS
By finalizing this order, the Customer expressly acknowledges and agrees to be bound and abide by the following Applicable Legal Instruments:
The Buyer further acknowledges and agrees that non-compliance with any of terms, conditions, or any clauses of any of the above Applicable Legal Instruments may, at Synodic sole discretion, represent a breach of all legal instruments governing the purchase of the Product.
And the Buyer further acknowledges and agrees that it is the Buyer’s obligation to review from time to time, the then-current versions of the Applicable Legal Instruments provided on Synodic website.
IV. TERM
This agreement is for a term of one year commencing on the day when the Notice of Order Acceptance was issued to the Customer. The agreement shall renew automatically for one year at the end of the initial Term, and any following successive Terms, unless either the Provider or the Customer shall provide at least one thirty (30) days notice of termination to the other party, in accordance with the Section XVII herein.
V. NOTICE
Synodic may give notice to the Customer by email, text message, or other electronic means of communications, as applicable, or by written communication sent by registered mail to Customer address on record. It is Customer’s responsibility to update and keep accurate identification information on its web account opened with Synodic.
The Customer acknowledges and agrees that all its identification information existent on its web account opened with Synodic at any moment (e.g.: phone, business address, email) are current and any notice sent by Synodic to any address or phone number on record is valid notice for all purposes related to the transactions pertaining to the Product.
The Customer may give notice to Synodic by email sent to the email address eld@synodicinc.com or in writing by registered mail sent to: Synodic Inc., 1 Hagersville Court, Toronto, ON M9C 4A2
VI. ACCOUNT INFORMATION
For any change of its account information, Customer must use the last versions of the Username and Password that were chosen or assigned during the registration or ordering process. It is Customer responsibility to safeguard the Username and Password. The Provider will not be responsible or liable in any way or manner for any unauthorized use or misuse of Customer Username and Password or other authentication information on record.
VII. SERVICES
When Synodic will send the Customer a Notice of Order Acceptance, by email or otherwise, validating that the order has been accepted, as described in Section III of the ELD Master Purchase Agreement, the ELD Licensing and Service agreement is conditionally formed.
The complete enforceability of the ELD Licensing and Service agreement commences when two conditions are met: (1) the installation of the Software was completed as per the Specifications, and (2) the testing of each Service was completed, meaning the Customer was able to communicate data and the Provider was able to receive initial data to be stored on Provider’s server.
VIII. LICENSE
The Provider hereby grants to Licensee a limited, revocable, non-sublicensable, non-transferable,
non-exclusive right to use any pre-selected and subscribed Service(s) and any associated Software, (the “License”) in accordance with this Agreement and Specifications, and subject to the payment of the Service Fees accepted and undertaken by the Licensee for the Services rendered by the Provider.
The License also allows for Licensee and any person authorized by Licensee to access remotely and use the Synodic website for the Synodic ELD™ Product, currently located at http://eld.synodicinc.com. for Licensee’s business use, and in accordance with this Agreement and Specifications.
The Licensee acknowledges and agrees that the Provider may from time to time improve or update the Services and/or Software, and may cause Software updates to be automatically installed with or without prior notification, or provide access to updates through Synodic website. The Licensee hereby acknowledges and agrees to such automatic installations and agrees to use only the updated version once it has been installed, and the Licensee hereby allows Synodic to send to the Licensee any notices, changes, updates, improvements, upgrades, by email, cellular phone, or other means of communication, free of any charge.
IX. LIMITATION OF LICENCE
The Products, Devices, Services, Software are protected by copyright, trademark, and other intellectual property rights.
Except for the rights expressly granted to the Licensee under this Agreement, and notwithstanding any reference to the purchase of the Device(s), any and all rights of ownership, title and interest, (including all copyrights, trademarks, service marks, patents, innovations, trade secrets, other intellectual property rights and other proprietary rights) and any other rights in the Product(s), Service(s), Software, Specifications, and the Synodic website, and any copies thereof (regardless of form of recording) are and shall remain exclusively owned by Synodic. Unless expressly worded, nothing provided herein can be construed to mean a transfer, conveyance or grant of exclusive right to the Licensee of any ownership right, title or interest in the Products, Devices, Services or Software, or to any copy thereof.
The Licensee agrees that it will not, either during this Agreement or after its termination contest or challenge Synodic ownership, title or interest of any intellectual property or other proprietary rights pertaining to the Service, Software or Products.
The Licensee acknowledges and agrees that during the Term of this Agreement, and after its lapse or Termination, the Licensee is strictly prohibited to:
X. DATA COLLECTION, TRANSFER, AND PROCESSING
The Customer grants Provider the permission, free of any charge or fee, to collect, transmit, and process data and information from the motor vehicles using the purchased Devices, in connection to and for the purpose of supply of Services, and to process, transmit, receive and maintain communication of data or information by electronic means with the Devices, vehicle drivers, Customer dispatch, or Customer management, as the case may be.
Synodic does not have and claims no ownership of any vehicle data and information that is generated by the Customer, is associated with, and originates from the purchased and installed Devices, and is collected, transmitted to, or processed by Synodic for the provision of Service(s). Synodic will process and transmit vehicle data and information to provide, maintain and improve the Products and perform obligations under this Agreement and applicable law. For the purpose of supplying the Service(s), from time to time, if required by law or when such action is businesswise necessary, on a confidential basis, Synodic may request data or information from databases maintained by third party providers, or store Customer data or information on the servers of such third parties.
Customer acknowledge and agree that any feedback, input, recommendations, troubleshooting information or other similar information that is provided or made available by the Customer directly or indirectly through third party, may be used by Synodic to modify, enhance, maintain and improve the Products and shall become the exclusive property of Synodic without any obligation or payment to the Customer or any other third party.
Synodic agrees not to disclose data and information collected from the Customer except in the following cases:
Synodic shall have the right to use and reproduce Customer data solely to the extent necessary to provide the Service(s) and fulfill its obligations to Customer under this Agreement. The privacy rules applicable to the collection, transfer, and processing of information and data are governed by the Privacy Policy undertaken by the Customer in furtherance of this Agreement and any other Applicable Legal Instrument. However, for statistical and analytical purposes, in connection to the improvement of current Products and development of new Products, Synodic may compile, store, and use aggregated data and system usage information. Such aggregated data used by Synodic in this manner is no longer associated with a Device and the data or information generated by a motor vehicle. Synodic will not attempt to disaggregate the data or re-associate it with a device without the Customer’s consent or unless legally compelled to do so, or unless required for safety or troubleshooting purposes.
XI. REPRESENTATIONS AND WARRANTIES
The Customer represents and warrants that the information provided by the Customer for opening and operating an account, and for the purchase of any Device, licence of any Service and Software, or supply of any Product, are current, complete, and accurate, to the best of its knowledge, and any changes that may occur in the future will be promptly recorded on Provider’s website, in Customer’s account.
The Customer further represents and warrants that it had obtained consent, and will continue to obtain consent for future Terms, from any third-party individuals, including but not limited to its employees (drivers of motor vehicles) with respect to collection, transmission to, and processing of vehicle and personal information and data, by the Seller for the purpose of delivering the Services, regarding: (i) the purposes for which such third party’s personal information and data has been collected; (ii) the intended recipients or categories of recipients of such personal information and data; and (iii) how the third party individual can access and rectify the information and data recorded by Synodic.
The Provider warrants that it will provide the subscribed and paid Service(s) with reasonable care, at standards comparable with similar Services provided by other competitors in Ontario.
XII. LIMITED SERVICE WARRANTY
Except as provided in this Agreement, Synodic makes no representations or warranties, express or implied, including to maximum extent permitted by applicable law, any implied warranty of merchantability or fitness for a particular purpose, about the Service(s), or any associated Software, or any Product(s) licensed to, or acquired by the Customer from Synodic. The Provider does not warrant that the subscribed, purchased, licensed and paid Synodic Product(s), Service(s), or Software will: (a) work effective at all times; (b) will not require occasional upgrades or modifications; or (c) network–related changes and upgrades will not impact negatively the Customer operations. Synodic does not authorize anyone to make any warranties on its behalf and the Customer should not rely on third-party representations.
Further, Synodic does not warrant that the subscribed and paid Service(s) will be:
Further, Synodic does not warrant that it can perform the subscribed Service(s) if the Device(s) through which such Service(s) are rendered do not function correctly, become(s) defective or fail to work due to incorrect configuration, physical damage, network outage or extended power failure, interference with its content, or following suspension or termination of such Services or the Customer account.
XIII. LIMITATIONS AND EXCLUSIONS OF LIABILITY
The Customer acknowledges and agrees that the Provider’s sole and maximum liability and the Customer’s exclusive remedy with respect to any and all of Services subscribed and paid Service(s), and associated Software, is limited to the amount paid by the Customer to Synodic for the defective Service(s) and/or Software for the year in which such liability arose. For the sake of clarity, the liability will apply to each individual defective Service and/or Software and will be prorated to the period not exceeding the interval between last January 1st, and the day of the year when the liability arose.
The Customer assumes all risk and liability derived from the use of Product(s), Service(s) and associated Software. Further, by undertaking such risk and liability, the Customer recognizes and accepts that Synodic denies any liability for any and all direct, indirect, special, general, punitive, exemplary, aggravated, incidental or consequential damages or loss of any kind, whether foreseeable or unforeseeable, including but not limited to loss or of damage to property or to data, loss of contract, loss of economic advantage, loss of profits or anticipated profits, loss of savings, loss or goodwill, cost of capital, loss of business opportunities, or any other pecuniary, commercial, or economic loss or damage of any kind, arising out of the use of, inability to use, or defects of any Device, Service, Software, or Product, including Notices, incurred by the Customer or a third party, arising from or in connection to this Agreement or any Applicable Legal Instrument.
The Customer acknowledges and agrees that Synodic and any Third-Party Providers (such as wireless phone companies, or internet providers) cannot guarantee the security of wireless or internet transmissions and will not be liable for any breach of security, damage or loss arising from or associated with the use of the Service or Software by the Customer.
The limitations, exclusions and disclaimers of this Agreement will apply regardless of the nature of the claim, cause of action, or demand, including breach of contract, tort (whether by negligence, gross negligence, or other non-intentional actions or omissions), strict liability, product liability, or any other legal or equitable theory and shall apply notwithstanding the failure of the essential purpose of this agreement or any remedy contained herein.
XIV. RELATIONS WITH THIRD PARTIES AND INSURANCE DISCLAIMER
The Customer acknowledges and agrees that Synodic uses, and Synodic ELD™ is based on, among others, standard cellular wireless commercial transmissions and internet services that facilitate the communications with the purchased Devices. Therefore, the Devices must be within wireless telephony coverage to communicate.
The Customer further acknowledges and agrees that Synodic is not a Third-Party Provider as defined hereinabove, and that Synodic may contract with Third-Party Providers from time to time for support and assistance in connection with the provision of the Service(s). As a result of such contracts entered into by Synodic and Third-Party Provider(s), Synodic may be subject to disclaimers, obligations of indemnify, defend and hold harmless the Third-Party Provider(s) for any Service(s) provided to the Customer.
Consequently, the Customer acknowledges and agrees that Synodic and Third-Party Providers are not insurers and any amounts paid to Synodic hereunder are consideration for the Service(s) provided by Synodic, not insurance premiums paid by Customer for indemnification or insurance coverage in case of loss or damage to Customer property or for injury of any employee, director, officer, agent or licensee of the Customer. In the event of any loss, damage, or injury of any person or property monitored by the subscribed and paid Service(s), the Customer acknowledges and agrees to have recourse and look only to its insurer to recover any damages or losses of any kind, and the Customer waives all rights of subrogation against Synodic and the Third-Party Providers that any insurer or other person may have as a result of paying any claim for loss, damage or injury to any person, including the Customer, its employees, directors, officers, agents, or licensees. The Customer will not bring any claim or action against any Third-Party Provider arising from Customer’s use of the Service(s).
XV. INDEMNIFICATION
The Customer agrees to indemnify, defend, and hold harmless Synodic from and against any third-party claims, suits, actions, liabilities, damages, losses, demands, costs, and expenses (including reasonable trial costs and fees for legal services) arising out of:
In the event consent has not been obtained from any of the persons required to provide their consent with respect to collection, transmission and processing of vehicle and personal information and data, the Customer shall indemnify, defend, and hold harmless the Provider against any claims, actions, applications, commenced by any third party, whether a driver, a Governmental agency, or any other individual or legal person, in connection to the breach of any privacy laws of any jurisdiction, arising or in connection to the purchased Product(s).
For the application of this Section, a third party will include but will not be limited to the Customer’s employees, agents, directors, officers, and licensees.
The Customer shall indemnify, defend and hold harmless Synodic against any and all personal claims, including libel, slander, arising in any way from an individual who is a director, officer, employee, and agent of the Customer, in connection to the use of any Product, Service and associated Software.
XVI. FEES AND PAYMENT
By entering into this Agreement, the Licensee agrees to establish an online account with Synodic and use that account for receiving subscribed Services. As consideration for the subscribed Services, the Licensee agrees to pay in full a monthly Service Fee for the Term of the contract, in accordance with the pricing quotations provided on Synodic ELD™ webpage, at http://eld.synodicinc.com
Each monthly payment shall be made on the first day of the month for each current month. The monthly Service Fee shall be added to the purchase Price as provided in Section III of the ELD Master Purchase Agreement.
If the Customer uses data in excess of the Threshold level, Synodic will apply a monthly surcharge in accordance with the information provided on the Website. The surcharge will be included in the monthly Service Fee for the balance of each month from the day the data usage exceeded the Threshold.
All payments are done by pre-authorized credit card payment or pre-authorized bank wire transfer or internet transfer with email notification. The Licensee agrees to provide accurate and valid credit card or bank account information and authorization for such payments throughout the Term of this Agreement, and any other successive Terms. The Licensee authorizes the Provider, at any time and in Provider’s sole discretion, to make inquiries into Licensee’s credit history and to record the results of those credit inquiries on Licensee’s account file at Synodic.
XVII. TERMINATION
Synodic reserves the right, in its sole discretion, to unilaterally terminate this Agreement, suspend and/or terminate any Service or any licence granted under this Agreement, without notice and with immediate effect in the following circumstances:
The Provider may in its sole discretion give the Licensee a reasonable time to cure the breach, but such time is mutually understood not to exceed thirty (30) days from the date when the notice of breach is given by Synodic to the Licensee. This privilege to cure the breach does not apply to the breach of the obligation to pay the Price or Service Fees.
This Agreement may be terminated by either party with notice of termination when such notice is given by one party to the other at least thirty (30) days in advance.
Except to the extent agreed to in writing by the parties, upon the termination of this Agreement;
XVIII. ASSIGNMENT
The Licensee acknowledges and agrees that the licence for Service(s) and Software are for the Customer’s use only and the Customer may not assign, resell, sub-license, provide or supply the Service(s) and Software to another party.
XIX. CHANGES
The Customer acknowledges and agrees that from time to time, Synodic may, at its sole discretion:
XX. DOWNLOADING SOFTWARE AND TESTING
The Customer acknowledges and agrees to:
XXI. INTERPRETATION OF THE AGREEMENT
This Agreement shall be construed in accordance with the rules set in Section IV of the ELD Master Purchase Agreement.
XXII. EXPORT CONTROL
The Buyer agrees to comply with such restrictions and not to export or re-export the Products to countries or persons prohibited under export control laws. By purchasing any Product on the Website, the Customer represents and warrants it is not in a country where such export is prohibited and that the Customer or the acquired Products are not on the Canadian Export Control List, the Canadian Area Control List or the U.S. Commerce Department's Table of Denial Orders or the U.S. Treasury Department's list of Specially Designated Nationals. The Customer is solely responsible for compliance with the laws of its domestic jurisdiction regarding the import, export, or re-export of the products.
XXIII. SEVERABILITY
If any part of these ELD Licensing and Service Agreement or other Applicable Legal Instrument is found to be unenforceable as a matter of law, all other parts of shall be unaffected and shall remain in force.
XXIV. APPLICABLE LAW
Except when mandatory domestic legislation provide otherwise, all legal issues arising from or related to the supply of the Product(s), purchase of Device(s), and licensing of Service(s) and Software will be construed in accordance with and determined by the laws of Ontario applicable to contracts entered into, and the laws of Canada when mandatory federal laws are applicable. By placing an order on Synodic website, the Customer agrees that the exclusive forum for any claims or causes of action arising out of the Customer use of Synodic website or related to the use of the Product(s) are Ontario Courts or Canadian Federal Courts, as the case may be. The Customer hereby irrevocably waives, to the fullest extent permitted by law, any objection that the Customer may have to the determination of the venue of any such proceeding brought in such a court ,and any claim that any such proceeding has been brought in an inconvenient forum.
XXV. ENTIRETY
This Agreement is the complete and exclusive agreement between Synodic and the Customer regarding the licensing of Services and associated Software, and supersedes all prior agreements and understandings, whether verbal or in writing, established by practice, policy or precedent.
XXVI. SURVIVAL
All provisions in this agreement and in any other Applicable Legal Instrument pertaining to representations and warranties, warranty exclusions, limitation of liability, indemnification, obligations to pay the amounts owed by the Customer, intellectual property protection and ownership, assignment and sub-licensing a licensed rights, and confidentiality, will survive the termination of this Agreement or other Applicable Legal Instrument.
Failure by Synodic to enforce a right does not result in waiver of such right. Any failure by Synodic to assert all or any of the Provider rights upon the Customer breach of these any terms, conditions, clauses or provisions of the ELD Licensing and Service Agreement or any other Applicable Legal Instruments shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver by Synodic be implied from the acceptance of any payment. Such waiver will arise only from an express written waiver signed by a duly authorized Synodic representative. No waiver of any right shall extend to or affect any other right the Provider may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
