Transflo Telematics for TAFS Customers

Pegasus TransTech, LLC
Transflo Mobile Telematics and Hours of Service Solution Agreement

This Fleet Authorization Agreement (“Agreement”) is by and between PEGASUS TRANSTECH, LLC (“PTC”), with its principal place of business at 4301 West Boy Scout Blvd., Suite 550, Tampa, FL 33607, and the fleet customer described below (“Customer”). This agreement is made effective when executed by an officer of PTC on the date signed below (“Effective Date”).

TERMS:

1. The Products provide in-vehicle telematics and cloud-based data logging solutions. The Products will be installed by Customer into the trucks driven by Customer’s truck drivers and independent operators (together with Customer’s agents, brokers, affiliates or other Customer representatives, “Participants”).
2. Effective with the execution of this Agreement, Customer will one month of the Monthly Subscription Fee, upfront, each as set forth on the Schedule hereto. From thereon, on a monthly basis, PTC will invoice Customer by email for the Monthly Subscription Fee, which will be payable upon receipt of such invoice. Payments are made to PTC using the ACH method. Past due balances will accrue interest at a rate of the lesser of one and one-half percent (1.5%) per month, or the highest rate allowed by law, from the due date. PTC reserves the right to suspend the Services and access to the Software immediately for any account with a delinquent balance. Additional Hardware may be ordered by Customer at any time at PTC’s then current list price. Any other products, services and software, including customized reporting and dashboards, will be subject to additional charges.
3. Software start bill date begins in the month hardware is shipped if before the 20th of the month, if after that date then the first software invoice will be sent the following month.
4. PTC grants to Customer a non-exclusive, non-transferable, royalty-free license to distribute the Software and related documentation to Participants and to no other persons, all in accordance with the terms of PTC’s End-User License Agreement and the Geotab Inc. (“Geotab”) End-User Agreement (collectively, the “End-User License Agreements”), both of which are attached hereto and hereby incorporated herein by reference. Customer acknowledges that Participants will be required to accept the End-User License Agreements before the Products will be provided to Customer hereunder.
5. Customer acknowledges that Customer and, as applicable, each Participant will receive notices of maintenance, upgrades, periodic updates and other communications from PTC via the email address entered by Customer and such Participant during Software registration.
6. Customer acknowledges and agrees that Customer is responsible for the installation of the Hardware and Software and the maintenance of the Hardware.
7. The term of this Agreement shall be for one (1) year commencing on the Effective Date, and will automatically renew for additional one (1) year periods, unless terminated earlier as provided herein or Customer provides written notice of termination at least sixty (60) days prior to a renewal date. PTC may, upon giving written notice thereof to Customer, terminate this Agreement if Customer breaches any material provision of this Agreement or the End-User License Agreements and fails to cure such breach within thirty (30) days after receipt of such notice or as set forth in the applicable End-User License Agreement, as applicable. Notwithstanding the foregoing or the terms of the Agreement, PTC shall have the ability to terminate this Agreement at any time (a) as set forth in, or otherwise required by, the End-User License Agreements or (b) as required by PTC’s agreement with Geotab.
8. In consideration for PTC granting Customer the right to distribute the Products to Participants, Customer agrees to not use, promote, or distribute to Participants, directly or indirectly, in any form, software, products, services or tools that perform substantially the same function as the Products.
9. During the Term or any renewal term, the Products provided by PTC will be the exclusive hardware, services and software of their kind used by Customer and its Participants.
10. Except as expressly permitted herein, no express or implied license or right is granted to Customer to, reproduce, copy, market, sell, distribute, disclose, license, sublicense, lease, timeshare, or rent the Software. Further, Customer shall not (a) disassemble, decompile, decrypt, or reverse engineer the Software, or in any way attempt to discover or reproduce source code for the Software, or any part thereof; (b) alter, modify, or prepare decompiled works based on the Software or related documentation, or any related material; or (c) remove, alter, cover or obscure the copyright or other proprietary notices placed on or embedded in the Software or related documentation.
11. PTC warrants that at the time the Software is delivered, PTC will be the lawful owner or licensee, as applicable, of the Software, and PTC will have full right, power, and authority to license the Software to Customer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 10 OF THIS AGREEMENT, THE PRODUCTS ARE PROVIDED ON AN “AS-IS” BASIS AND PTC MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12. Customer hereby agrees to indemnify, defend and hold PTC, its affiliates and their respective successors, officers, managers, directors, members, employees, representatives and agents harmless from, and pay, any and all actions, causes of action, claims, demands, costs, liabilities, expenses and damages (including attorneys’ fees) arising out of, or in conjunction with, any claim (a) that the Products constitute an infringement or misappropriation of any confidential information, trade secret, patent, copyright, trademark, trade name or other legal right of any third party (the “IP”), except with respect to claims based on the use of third-party IP originated by PTC or (b) for injury to or death of any person, or for damage to any property, arising out of or in connection with the Products, or any authorized subcontractor, representative or agent or pursuant to the End-User License Agreements. This Section 11 shall survive termination of this Agreement.
13. PTC shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond PTC’s reasonable control, including, without limitation: (i) acts of God; (ii) flood, fire, earthquake or other similar events or natural disasters; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order or law; (v) actions, embargoes or blockades in effect on or after the Effective Date; or (vi) action by any governmental authority (each of the items listed in the foregoing subsections (i) through (vi) a “Force Majeure Event”). In the event PTC suffers such an event, and to the extent possible given the circumstances surrounding such an event, PTC will make reasonable efforts to give notice to Customer within a reasonable period of time, stating the period of time the occurrence is expected to continue.
14. PTC and its affiliates and their respective and their respective successors, officers, managers, directors, members, employees, representatives and agents will not be responsible for claims, damages or liabilities arising from (a) failure to perform any services other than those expressly agreed to pursuant to this Agreement or the PTC End-User License Agreement; (b) acts or omissions based on instructions or directions from Customer, its Participants or their affiliates or any of their respective successors, officers, managers, directors, members, employees, representatives and agents, (c) errors or failure to provide the Services, or errors or failure of the Hardware or Software, to the extent such errors or failure is caused by (i) incomplete, inaccurate or untimely information provided by Customer, its Participants or their affiliates or any of their respective successors, officers, managers, directors, members, employees, representatives and agents; (ii) failure of Customer, its Participants or their affiliates or any of their respective successors, officers, managers, directors, members, employees, representatives and agents to perform its obligations or provide resources as required by this Agreement or the End-User License Agreements; (iii) a Force Majeure Event; or (iv) installation of the Hardware or Software; or (d) the installation of the Hardware or Software.
15. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR THE END-USER LICENSE AGREEMENTS, IN NO EVENT WILL EITHER PARTY OR THEIR RELATED PARTIES OR REPRESENTATIVES BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF PROPERTY, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS ADDENDUM.
16. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR THE END-USER LICENSE AGREEMENTS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PTC, ITS AFFILIATES AND THEIR RESPECTIVE SUCCESSORS, OFFICERS, MANAGERS, DIRECTORS, MEMBERS, EMPLOYEES, REPRESENTATIVES AND AGENTS TO CUSTOMER AND THE PARTICIPANTS IN CONNECTION WITH THE PRODUCTS OR OTHERWISE ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID TO PTC UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRIOR TO SUCH CLAIM.
17. During the Term, each party will maintain at its own expense, in addition to all legally required insurance, commercial general liability insurance in the amount of one million dollars ($1,000,000.00). Each party will provide, upon request, proof of its insurance coverage (such as a certificate of insurance executed by an authorized representative of the party).
18. Pegasus’ collection and use of personal information in connection with your use of the Application is described in Pegasus’ Privacy Policy located at privacy@transflo.com. By downloading, installing and using the Application, you consent to the collection, processing and disclosure of data concerning you in accordance with this privacy policy.
19. Miscellaneous Provisions:
    1. This Agreement is not an offer and shall be considered in draft form only and is not binding on any party until and unless both a duly authorized officer of PTC and a duly authorized representative of Customer execute the Agreement.
    2. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission, including by Portable Document Format, shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
    3. Each of the parties hereto shall, and shall cause their respective affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated hereby.
    4. Amendments or modifications to this Agreement must be in writing signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof.
    5. This Agreement shall not be assigned by Customer (including, but not limited to, by or in connection with change of control, merger (whether or not Customer is the surviving party), operation of law or any other manner) without the prior written consent of PTC. This Agreement shall be binding on, and inure to the benefit of, the parties hereto and their respective successors and assigns.
    6. All notices and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth below (or to such other address that may be designated by the receiving party from time to time in accordance herewith). All notices shall be delivered by a nationally recognized overnight courier (with all fees and expenses prepaid) or facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided, a notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements herein.
    7. The parties hereby agree that the terms and conditions of this Agreement are confidential. Customer agrees that PTC may announce the purchase of PTC related products or services in a press release or other marketing materials immediately after “going-live” with the Participants.
    8. This Agreement, together with all exhibits hereto, constitutes the sole and entire agreement between the parties and supersedes all prior and contemporaneous agreements, whether written or oral, formal or informal, regarding the subject matter hereof. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    9. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
    10. In the event that any party hereto institutes any legal suit, action or proceeding against the other party, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
    11. This Agreement, and all matters arising out of or related thereto, shall be in all respects governed by the laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction). Any legal suit, action or proceeding arising out of or related to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Florida, in each case located in the City of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

Consent to Data Release

In conjunction with the Transflo Mobile Telematics and Hours of Service Solution Agreement between Pegasus Transtech, LLC, a Delaware limited liability company (“Pegasus”), and the fleet customer described below ("Customer"), Customer hereby agrees as follows:

1. Customer hereby authorizes Pegasus to provide third-parties (“Third-Parties”) certain Data of Customer.
2. For purposes hereof, “Data” means (i) Personal Information; (ii) Automatically Collected Information; (iii) Location Information; (iv) Information Collected from Third-Party Sources and (v) Aggregate Data. Notwithstanding the foregoing, Pegasus hereby agrees that it will not provide Third-Parties with any Personal Information of Customer and/or its employees, independent contractors and/or agents (collectively, “Service Providers”), except for Location Information with respect to Service Providers’ vehicles.
3. Customer acknowledges and agrees that (i) it provides the consent granted hereof on behalf of itself and any and all of its Service Providers who use the Pegasus Services pursuant to the Customer Agreement and (ii) Customer has the authority to grant the consent set forth in clause (i) above.
4. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Pegasus Privacy Policy, last updated June 2, 2017, which is incorporated by reference into that certain End User License Agreement, between Customer and Pegasus.

This consent is valid until the earlier of (i) the expiration or earlier termination of the Customer Agreement or (ii) the receipt by Pegasus of Customer’s written request to withdrawal this consent.