License Agreement and Terms and Conditions of Service

Konexial Platform Terms and Conditions

Last Updated January 11, 2025

These Terms and Conditions (these “Terms”), together with the terms of the Order Form to which these Terms relate (the “Order Form” and, together with the Terms, this “Agreement”) are an agreement between Konexial, Inc., a Tennessee corporation (“Konexial”) and the customer executing the Order Form (the “Customer”), and apply to all subscriptions to, and use of, Konexial’s platform-based products and services (the “Offerings”). By executing an Order Form or using the Offerings, Customer agrees to abide by the terms of this Agreement. Konexial and Customer may be referred to in these terms as the “Parties” and each as a “Party”.

Definitions. For purposes of this Agreement:

“Aggregated Statistics” means data and information related to Customer’s use of the Offerings that is used by Konexial in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Offerings.
“Authorized User” means Customer’s employees, contractors, and agents (i) who are authorized by Customer to access and use the Offerings under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Offerings has been purchased hereunder.
“Compatible Mobile Device” means the smartphone, tablet or rugged handheld device supplied by Customer, with a model type and operating system version that is compatible for use with the Konexial software and the service cloud communicating with that device.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Offerings.
“Documentation” means Konexial’s guides relating to the Offerings provided by Konexial to Customer either electronically or in hard copy form/end user documentation relating to the Offerings.
“Hardware” means any hardware sold or leased to Customer as part of the Platform, which may include, without limitation, Electronic Logging Devices (ELDs), AI cameras, tracking devices, locks and other items, together with cables, display devices and accessories.
“Konexial IP” means the Offerings, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Konexial IP includes Aggregated Statistics and any information, data, or other content derived from Konexial’s monitoring of Customer’s access to or use of the Offerings.
“Managed Services” means event monitoring and data review services that may be provided by Konexial in connection with the Offerings.
“Offerings” means any Konexial products or services, including, if applicable, Hardware, Managed Services and Professional Services, purchased, licensed or leased by Customer as set forth in the Order Form.
“Privacy Policy” means Konexial’s privacy policy, as amended from time to time, available at https://konexial.com/privacy-policy/.
“Professional Services” means any consulting services (e.g., implementations, managed installations, customizations, trainings, etc.), if any, that are purchased by Customer pursuant to an Order Form.
“Third-Party Products” means any third-party products provided with or incorporated into the Offerings.

Access and Use.

Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Konexial hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14(h)) right to access and use the Offerings during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein.
Documentation License. Subject to the terms and conditions contained in this Agreement, Konexial hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14(h)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Offerings.
Use Restrictions. Customer shall not use the Offerings for any purposes beyond the scope of the access granted in this Agreement. For purposes of clarity, Customer may only use the Offerings for lawful, authorized purposes related to Customer’s transportation, fleet management, logistics management, supply chain management or asset management business. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Offerings or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Offerings or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Offerings, in whole or in part; (iv) remove any proprietary notices from the Offerings or Documentation; or (v) use the Offerings or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Reservation of Rights. Konexial reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Konexial IP.
Suspension. Notwithstanding anything to the contrary in this Agreement, Konexial may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Offerings if: (i) Konexial reasonably determines that (A) there is a threat or attack on any of the Konexial IP; (B) Customer’s or any Authorized User’s use of the Konexial IP disrupts or poses a security risk to the Konexial IP or to any other customer or vendor of Konexial; (C) Customer, or any Authorized User, is using the Konexial IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Konexial’s provision of the Offerings to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Konexial has suspended or terminated Konexial’s access to or use of any third-party services or products required to enable Customer to access the Offerings; or (iii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Konexial shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Offerings following any Service Suspension. Konexial shall use commercially reasonable efforts to resume providing access to the Offerings as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Konexial will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Konexial may monitor Customer’s use of the Offerings and collect and compile Aggregated Statistics. As between Konexial and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Konexial. Customer acknowledges that Konexial may compile Aggregated Statistics based on Customer Data input into the Offerings. Customer agrees that Konexial may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, and Customer hereby provides Konexial with a perpetual, worldwide, royalty free license to use the Aggregated Statistics in such manner.
New Releases and Versions. Konexial, in its sole discretion, may create new releases and versions of any software comprising the Offerings. Any such new releases or versions will be made available to Customer when made generally available by Konexial to all of its customers.

Customer Responsibilities.

Customer is responsible and liable for all uses of the Offerings and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Offerings, and shall cause Authorized Users to comply with such provisions.
Customer is solely responsible for ensuring use of the Offerings and operation of Customer’s business complies with all applicable laws and regulations including, without limitation United States transportation regulations (including regulations issued by the Federal Motor Carrier Safety Administration (FMCSA). Customer, and not Konexial, shall be solely responsible for ensuring any applicable International Fuel Tax Agreement (IFTA) filings are properly made and that all required records are properly maintained. Konexial owes no obligation to Customer to maintain any records whatsoever, provided, that, in the event Konexial, in its discretion or pursuant to any legal requirement imposed on Konexial by a third party, maintains any records relevant to Customer’s FMCSA or IFTA compliance, Konexial may, for a fee, produce such records to Customer upon written request (but shall have no obligation to do so).
Customer shall be solely responsible for ensuring that no Authorized Users or any other persons utilize any of the Offerings while driving or in any other unlawful or unsafe manner.
Customer is responsible for obtaining and paying for, without reimbursement from Konexial: (i) wireless carrier services and support related to the Compatible Mobile Devices; (ii) wireless carrier data plans related to the Compatible Mobile Devices and any additional data charges imposed by a wireless carrier for over the air updates; and (iii) Compatible Mobile Devices and support for such Compatible Mobile Devices (such costs and services are not included in the Fees). Customer acknowledges that the Offerings may not be available if Customer does not utilize a Compatible Mobile Device.

Support. Konexial shall use commercially reasonable efforts to ensure that access to any SaaS component of the Offerings is available 99.5% of the time as measured in a calendar month (subject to periodic scheduled maintenance, downtime attributable to Customer’s own network or third party acts or force majeure events beyond the control of Konexial), however this Agreement does not entitle Customer to any support or guaranteed up-time for the Offerings.
Hardware.

As a component of the Offerings, and if set forth in an Order Form, Customer may also be leasing or purchasing Hardware from Konexial. The payment terms and, if applicable, lease terms, for any Hardware shall be as specifically set forth in an Order Form.
Customer is responsible, and shall be invoiced, for all fees related to delivery of any Hardware to Customer. Delivery timing is determined solely by third party carriers, and Konexial is not liable for any delayed or late delivery of any Hardware.
Customer is solely responsible for installing the Hardware in accordance with Konexial’s written instructions. Some Hardware installations may require installation by a third-party vendor. Konexial, even if coordinating the third-party vendor installation of Hardware, shall have no liability to Customer with respect to any installation matters, and Konexial is not liable for any cost, expense or damages arising from the installation of the Hardware, regardless of whether such installation is conducted by Customer or a third-party vendor.
Customer is a lessee of any leased Hardware utilized by Customer as a component of the Offerings, and Konexial or its applicable licensors will at all times retain ownership of such leased Hardware (and any software embedded or contained therein). Customer hereby agrees to keep any leased Hardware at all times free and clear from all liens and encumbrances. Customer agrees to provide Konexial immediate notice of any attachment or other judicial process affecting any leased Hardware in Customer’s possession. Konexial may, at its own expense or the expense of its licensors, affix plates or markings on the leased Hardware and on any operating manuals and manufacturer’s instruction indicating Konexial’s or its licensors’ interest in such leased Hardware.
At the end of the Term, Customer must, at Customer’s own expense, uninstall, package and return all leased Hardware to Konexial within 15 days of the end of the Term. The leased Hardware must be returned to Konexial in good, working condition allowing for ordinary and reasonable wear and tear. Conditions not constituting ordinary and reasonable wear and tear include, but are not limited to, damage caused as a result of flooding, opening of the casing, or clear/obvious mishandling of the Hardware. If Konexial has not received the leased Hardware within 15 days of the end of the Term, or if the leased Hardware is returned at any time (including during the Term) in damaged condition, Konexial may invoice Customer for the value of the unreturned or damaged Hardware.
Customer is solely responsible for the loss of, damage to, or the entire cost of any necessary service or repair of the Hardware. Customer has no right to sell, give away, transfer, pledge, mortgage, alter or tamper with any leased Hardware.
If Customer believes there to be a material defect in any Hardware, Customer shall promptly alert Konexial of such alleged material defect. Following receipt of such notice, Konexial will run a diagnostic test of the Hardware. If Konexial determines in its reasonable discretion that there is a material defect in the Hardware, Konexial will request Customer to, at Customer’s own expense, uninstall, package and return the defective Hardware to Konexial. Upon Konexial’s receipt of the defective Hardware, Konexial will send Customer replacement Hardware. Konexial’s agreement to provide replacement Hardware in accordance with this Section is null and void in the event of (i) any alteration, modification or special configuration or installation or de-installation of the Hardware that does not comply with Konexial’s written instructions; (ii) accidents affecting the Hardware, misuse, tampering with, abuse, neglect or damage the Hardware; (iii) use of the Offerings in breach of this Agreement; (iv) connecting the Hardware to an improper voltage supply; (v) water, weather or physical damage; or (vi) use of the Hardware with accessories and/or devices which are not approved by Konexial in writing.
As between Customer and Konexial, Customer will at all times bear the entire risk of loss, theft, destruction, or damage to any Hardware that has been shipped to Customer (on an “FOB (Konexial shipping point)” basis).
Customer agrees that Customer will advise any user of a vehicle on which Customer places the Hardware that the vehicle may be tracked and that Customer will be able to produce historical reporting on the vehicle. Customer, and not Konexial, shall be solely responsible for any complaints, allegations and liabilities relating thereto that arise from Customer’s tracking of any vehicles through use of the Hardware.

Fees and Payment.

Fees. Customer shall pay Konexial the fees (“Fees”) as set forth in the Order Form without offset or deduction. All Fees are non-cancellable and non-refundable. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. Any billing disputes must be submitted by Customer to Konexial in writing within 30 days of the applicable invoice date. If Customer fails to make any payment when due, without limiting Konexial’s other rights and remedies: (i) Konexial may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Konexial for all reasonable costs incurred by Konexial in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Konexial may suspend Customer’s and its Authorized Users’ access to any portion or all of the Offerings until such amounts are paid in full.
Increases. Not more frequently than once annually after the beginning of the Term, Konexial may increase the Fees for all Software or Services being provided under this Agreement and Customer agrees to pay any such increases in the Fees; provided that no such annual increase in the Fees shall exceed ten percent (10%) above the Fees being paid by Customer in the immediately preceding year.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Konexial’s income. For purposes of clarity, the fact that a Konexial invoice may include calculated sales and use taxes does not impair Customer’s responsibility under these Terms to ensure all taxes have been calculated and remitted properly.
Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Konexial may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Konexial with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 2.5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
Payment Methods.

Customer is required to provide Konexial accurate information regarding Customer’s credit card or other payment method authorized by Konexial for payment of Fees (a “Payment Method”). Customer will promptly update Konexial in writing with any changes in Customer’s Payment Method, and if such update is not provided, Konexial may suspend or terminate Customer’s subscription to the Offerings. Customer authorizes Konexial to bill Customer’s Payment Method in advance for payment of Fees in accordance with the payment schedule described in the applicable Order Form.
Konexial uses a third-party payment processor (the “Payment Processor”) to bill Customer. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Konexial is not responsible for error by the Payment Processor. By choosing to subscribe to any Offerings, Customer agrees to pay Konexial, through the Payment Processor, all Fees and to bill Customer’s Payment Method.
Some of the Offerings may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as set forth in an Order Form. By subscribing to Offerings that are associated with recurring Fees over the Term, Customer accepts responsibility for all recurring charges and agrees that Konexial may charge Customer’s Payment Method in accordance with the payment schedule reflected in the applicable Order Form without further authorization from Customer, until Customer provides prior notice (receipt of which is confirmed by Konexial) that Customer has terminated this authorization or wishes to change the Payment Method. Such notice will not affect charges submitted before Konexial could reasonably act on the request. To terminate Customer’s authorization or to change a Payment Method, email accounting@konexial.com.

Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the execution of an Order Form and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback.

Konexial IP. Customer acknowledges that, as between Customer and Konexial, Konexial owns all right, title, and interest, including all intellectual property rights, in and to the Konexial IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
Customer Data. Konexial acknowledges that, as between Konexial and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Konexial a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Konexial to provide the Offerings to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Konexial by mail, email, telephone, or otherwise, suggesting or recommending changes to the Konexial IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Konexial is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.

Warranty Disclaimer. THE OFFERINGS, INCLUDING ANY HARDWARE UNLESS OTHERWISE AGREED TO BY KONEXIAL IN A SEPARATE WRITTEN AGREEMENT WITH RESPECT TO SPECIFIC HARDWARE, ARE PROVIDED “AS IS” AND KONEXIAL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KONEXIAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. KONEXIAL MAKES NO WARRANTY OF ANY KIND THAT THE OFFERINGS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Indemnification.

Konexial Indemnification.

Konexial shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Offerings, or any use of the Offerings in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Konexial in writing of such Third-Party Claim, cooperates with Konexial, and allows Konexial sole authority to control the defense and settlement of such Third-Party Claim.
If a Third-Party Claim is made or appears possible, Customer agrees to permit Konexial, at Konexial’s sole discretion, to (A) modify or replace the Offerings, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Konexial determines that neither alternative is reasonably available, Konexial may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Offerings in combination with data, software, hardware, equipment, or technology not provided by Konexial or authorized by Konexial in writing; (B) modifications to the Offerings not made by Konexial; (C) Customer Data; or (D) Third-Party Products.

Customer Indemnification. Customer shall indemnify, hold harmless, and, at Konexial’s option, defend Konexial from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) acts or omissions in conducting Customer’s business (e.g., driver performance), (iii) use of the Offerings in a manner not authorized by this Agreement; (iv) use of the Offerings in combination with data, software, hardware, equipment, or technology not provided by Konexial or authorized by Konexial in writing; or (v) modifications to the Offerings not made by Konexial, provided that Customer may not settle any Third-Party Claim against Konexial unless Konexial consents to such settlement, and further provided that Konexial will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND KONEXIAL’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL KONEXIAL’S LIABILITY UNDER THIS SECTION 10 EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO KONEXIAL IN THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.

Limitations of Liability.

IN NO EVENT WILL KONEXIAL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER KONEXIAL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL KONEXIAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO KONEXIAL UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
The Platform, including any Managed Services and Professional Services, constitutes a set of tools that support, but are in no way intended to ensure, Customer compliance and safety. As between Customer and Konexial, it is Customer’s responsibility, and not Konexial’s responsibility, to ensure Customer operates every aspect of Customer’s business in a safe and compliant manner, and, for purposes of clarity, in no event shall Konexial have any liability to Customer or any third party with respect to Customer’s driver safety, behavior, training, compliance, performance or other similar matters.
Some of the Offerings may include Third-Party Products, such as map data providers, and Customer’s use of any such Third-Party Products may require Customer to enter into license or other user agreements in order to access and utilize such Third-Party Products. Customer hereby acknowledges and agrees that Konexial makes no representations or warranties regarding the accuracy of any data contained in or generated by any Third-Party Products and is not liable for any claims and damages arising from Customer’s use of any Third-Party Products.

Term and Termination.

Term.

The term of this Agreement (the “Term”) shall be as set forth in the Order Form. The Term shall automatically renew and extend for successive periods of the same duration as reflected in the original Order Form unless Customer provides written notice of non-renewal to Konexial via email at notice@konexial.com no later than 180 days prior to the expiration of the then-current Term.
Notwithstanding anything to the contrary in an Order Form, the initial Term is based on the months or years indicated in the “Initial Term” field of the Order Form. For SaaS components of the Offerings only, the “Initial Term” begins on the “Initial Term Start Date” referred to in the Order Form and ends on the end date of the “Initial Term” calculated from the date that the last SaaS SKU is fully live in all facilities of the Customer. For combined Hardware and SaaS Offerings, the Initial Term begins on the Initial Term Start Date referred to in the Order Form and ends on the end date of the “Initial Term” calculated from the date of the last Hardware SKU installed by the Customer.

Termination. In addition to any other express termination right set forth in this Agreement:

Konexial may terminate this Agreement for any reason on thirty (30) days’ prior written notice to Customer, or immediately effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Konexial’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 7;
either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Konexial IP and, without limiting Customer’s obligations under 7, Customer shall delete, destroy, or return all copies of the Konexial IP and certify in writing to Konexial that the Konexial IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
Survival. This Section 12(d) and Sections 5, 7, 8, 9, 10, 11, and 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

Additional Professional Services Terms. The following terms of this Section 13 shall apply solely to the extent any Professional Services are purchased under any Order Form:

Work Product Acceptance. Upon Konexial’s provision of any work products, developments, inventions, technology, materials or other deliverables provided to the Customer in connection with any Professional Services (“Work Product”) to Customer, Customer shall have five (5) business days to either accept or reject such Work Product based on the specifications for such Work Product set forth in Order Form by providing Konexial with a written notice of exceptions (“Notice of Exceptions”). If Customer fails to provide Konexial with a Notice of Exceptions within such period, the Work Product will be deemed accepted without any further act required by either party. If Konexial timely receives a Notice of Exceptions from Customer, Konexial shall use commercially reasonable efforts to promptly correct and re-submit the Work Product for acceptance in a timetable agreed to by the parties. Re-submitted Work Product shall be subject to the same acceptance procedures set forth in this Section. If Konexial is unable to correct a deliverable so that it meets the specifications set forth in the Order Form after repeated attempts, Customer may notify Konexial in writing that it wishes to cancel the Professional Services portion of the applicable Order Form and Konexial shall, as Customer’s sole and exclusive remedy, refund to Customer the Fees paid under the applicable Order Form for such unperformed Professional Services. Customer acknowledges that (i) payment of the Fees in accordance with the applicable Order Form for such Professional Services and (ii) failure to provide any timely Notice of Exceptions in accordance with this Section, constitutes final acceptance of the Professional Services and all associated Work Product.
Change Orders. If Professional Services have been purchased by Customer under an Order Form, Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Order Form by written request to Konexial specifying the desired modifications (a “Change Order”). Konexial shall, within a reasonable time following receipt of such Change Order, submit an estimate of the revised time associated with such Change Order and may, in Konexial’s discretion, propose an amendment the relevant Order Form to reflect the Change Order request. Within five (5) business days after receipt of any such estimate and/or amended Order Form, Customer shall notify Konexial of its acceptance of such estimate and/or amended Order Form. Until Customer’s acceptance in writing of an Order Form created by Konexial based on such an estimate, Konexial shall have no obligation to perform the modified Professional Services associated with the relevant Change Order. Each amended Order Form shall become effective upon acceptance by both Konexial and Customer.
Expiration. Unless expressly provided to the contrary on the applicable Order Form, any Professional Services purchased pursuant to an Order Form must be used within twelve (12) months from the date applicable Order Form is signed by Customer, otherwise they will expire without refund.
Customer’s Responsibilities. Customer shall make available in a timely manner at no charge to Konexial all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources required by Konexial for the performance of the Professional Services. Customer shall be responsible for, and assume the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to Konexial, office space, services and equipment (such as copiers, fax machines and modems) as Konexial may reasonably require to perform the Professional Services. Customer will assign a coordinator that will (i) serve as a primary point of contact with respect to the Professional Services, (ii) ensure that all tasks associated with the Professional Services and reasonably required by Konexial for completion of the Professional Services are completed in a timely manner, (iii) ensure the availability and cooperation of all relevant Customer personnel and coordinate appropriate schedules to facilitate timely completion of the Professional Services, and (iv) provide and facilitate any and all other coordination activities or requirements reasonably requested by Konexial and necessary for completion of the Professional Services in a timely manner. If the Professional Services consist of data conversion and Customer reschedules agreed to dates for such conversions, such changes may affect Customer’s “go-live” date (for which Konexial shall not be responsible), and Konexial reserves the right to charge additional Fees for any such changes. Customer shall be responsible for preparation of its facilities and all reasonable costs thereof as required for proper installation of any software. Should Konexial encounter any conditions at the premises of a Customer that were not reasonably anticipated or that increase the risk involved in Konexial’s completion of its obligations to perform Professional Services under any Order Form, upon notice to Customer, Konexial may, in its sole discretion: (i) continue to perform the Professional Services; (ii) suspend activities and prepare a Change Order request prior to proceeding; or (iii) terminate all Professional Services, and such termination shall not be a breach of this Agreement by Konexial.
Fees and Payments.

Fees. In consideration of the Professional Services, Customer shall pay to Konexial such Fees as set forth in the applicable Order Form. Professional Services described in any SOW or Order Form represent only a good faith estimate of such Professional Services based on the known scope of work at time such SOW or Order Form is provided to Customer, and no SOW or Order Form shall be construed as a “fixed fee” or “not to exceed” services commitment. Additional Professional Services may be required in addition to those included in the relevant SOW or Order Form in order to complete the applicable project, and additional Fees for any such additional Professional Services rendered by Konexial will be billed to and paid by Customer. Billable time includes labor and communication between Customer and Konexial as it relates to the relevant Professional Services.
On-Site Services and Travel. All Software and Services provided by Konexial do not include travel expense reimbursements which are billed separately for all onsite visits and include, if necessary, airfare, rental car, airport parking, employee driving mileage and meals. Travel expenses will be kept as reasonable as possible with coach class airfare and moderate level hotel accommodations. For week-long onsite visits, team members will typically take the first flight out of the Konexial location to Customer location on Monday and take the last flight back to their Konexial location on Thursday night. Travel expenses will be billed as incurred and are due upon receipt of the invoice by Customer. In the event such expenses are not included in the relevant SOW or Order Form, such expenses will be billed separately to and paid by Customer at the time incurred. There are no refunds on any prepaid expenses. Except as provided herein, each Party will be responsible for its own expenses incurred in rendering performance under this Professional Services Addendum, each applicable Order Form and any relevant SOW.
Invoicing. Unless otherwise set forth in a particular Order Form, Konexial will issue invoices to Customer in accordance with Konexial’s standard invoicing process for amounts due under the applicable Order Form (along with any adjustments for additional Professional Services or other expenses as described herein), and payment of such amounts shall be due according to the payment terms set forth on the applicable invoice. The first invoice date for SaaS components of the Offerings is the date of the initial project kickoff call between Konexial and the Customer. For combined Hardware and SaaS Offerings, the first invoice date is the shipment date of the initial shipment of Hardware.

Miscellaneous.

Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, an Order Form, and any other documents incorporated into the Agreement by reference, the following order of precedence governs: (i) first, the terms of the Order Form; (ii) second, these Terms; and (iii) third, any other documents incorporated herein by reference. No purchase orders or other documents submitted by Customer shall be effective to vary the terms of this Agreement (including any Order Form) or the terms that apply to any third-party products and / or third-party services.
Privacy. The Privacy Policy is expressly incorporated herein by reference. Any information provided to Konexial, or that is collected in connection with Customer’s use and access of the Offerings, is subject to the terms and conditions of the Privacy Policy. The Privacy Policy may be amended from time to time in accordance with its terms.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
Force Majeure. In no event shall Konexial be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Konexial’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, infrastructure failures, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Amendment. Konexial may modify these Terms by providing at least 30 days’ prior written notice to Customer, provided, that any such modification shall not be effective until the next extension or renewal of the Term (as reflected in the Order Form) during which such notice of amendment is provided.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction; Statute of Limitations. This Agreement is governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Tennessee. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee in each case located in Knoxville, Tennessee, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. All claims shall be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. TO THE EXTENT ALLOWED BY LAW, CUSTOMER WAIVES ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING. Any delay by Konexial in enforcing its rights under this Agreement shall not prejudice Konexial’s rights, and Customer agrees and understands that no statute of limitations period regarding any amounts due under this Agreement shall begin to accrue until such time as this Agreement is terminated as provided for herein. To the maximum extent this limitation is permitted by applicable law, no action, regardless of form, may be brought by Customer pursuant to this Agreement or with respect to the Services more than one (1) year from the date the cause of action arose.
Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Konexial. Contingent on (a) Customer’s payment of Konexial’s then-current fee for transfer, assignment, or license re-registration at the time any request for consent is submitted to Konexial, and (b) the written agreement of the purported transferee to assume and perform all of Customer’s obligations under this Agreement, Konexial will not unreasonably withhold such consent. Konexial may assign this Agreement at its discretion. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Non-Solicitation of Employees. During the Term and for twelve (12) months after the termination of the Agreement, Customer agrees that, without express written permission from the CRO (Chief Revenue Officer) of Konexial, Customer shall not directly or indirectly, solicit or attempt to solicit or induce, contract with or hire, in any manner whatsoever, a then-current employee of Konexial, to associate or be employed by them, or to perform services for Customer as an independent contractor. The Parties agree that a breach of this Section would cause harm to Konexial that would be difficult to calculate. As such, in the event of a breach of the above paragraph, Customer shall pay Konexial, as liquidated damages (and not a penalty) an amount equal to one hundred percent of the employee’s most recent annual salary or annual compensation payable by Konexial. If Customer fails to pay such liquidated damages within thirty (30) days of demand therefore, then Customer shall be responsible for all of Konexial’s attorney’s fees and costs of collection incurred in connection with enforcement of this Section.
Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Offerings or any Customer Data outside the US.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Attorneys’ Fees and Costs. Customer agrees to reimburse Konexial for all costs, including reasonable attorneys’ fees, costs of litigation, mediation or arbitration, expert fees and court costs incurred by Konexial in connection with the enforcement of this Agreement.