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Last Updated: February 1st, 2025
These Terms and Conditions for the ESMART Solution, including any accompanying order forms (each, an “Order Form“), as may be amended from time to time (collectively, this “Agreement“), are between the buyer named on the Order Form (“Buyer“) and ESMART LLC (“ESMART “).
ESMART has developed the ESMART intelligent hardware system for speed and fuel management, which connects to a vehicle’s throttle (including the throttle position sensor) (the “Product“), employs other equipment provided by ESMART for use in connection with Products (the “Accessories”), and runs on Software (as defined below) and hosted services that receive information from the Product and control the Product from time to time (the “Services” and, together with the Product, Accessories and Software, the “ESMART Solution”), all as described herein.
| Name | Includes |
| Product | 1. Main hardware module 2. Main Harness 3. ECM Harness |
By purchasing or using the ESMART Solution, in whole or in part, Buyer agrees to the following terms and conditions.
(a) As specified in the Order Form, ESMART will either (i) deliver the Product(s) to Buyer at Buyer’s address (as set forth on the Order Form) or (ii) make the Product(s) available for pickup by Buyer at a mutually agreeable address. Buyer will be responsible for shipping, handling, insurance, import duties, customs, non-delivery and other similar costs, which, if paid by ESMART, will be invoiced by, and payable to, ESMART. Risk of loss will pass to Buyer upon delivery to the carrier at point of origin.
(b) Title to the Products and Accessories provided to Buyer on a subscription basis (collectively “ESMART Devices”) will be retained by ESMART. Title to the Products and Accessories not provided to Buyer on a subscription basis (collectively, “Buyer Devices”) will pass to Buyer upon delivery to the carrier at point of origin. Buyer will keep the ESMART Devices free and clear of all liens, encumbrances, and security interests. Buyer will use the ESMART Devices in accordance with ESMART’s instructions for use and is responsible for any loss, damage or destruction to ESMART Devices, reasonable wear and tear excepted. Buyer will not deliver any ESMART Devices to, or allow access to ESMART Devices by, any third party other than Permitted Users (as defined below).
(c) ESMART will provide the Services indicated in the Order Form. With respect to the Services, Buyer shall (i) reasonably cooperate with ESMART in all matters relating to the Services and provide such access to Buyer’s premises, vehicles, and such office accommodation and other facilities as may reasonably be requested by ESMART, for the purposes of performing the Services; (ii) respond promptly to any ESMART request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for ESMART to perform Services in accordance with the requirements of this Agreement; (iii) provide such materials or information as ESMART may reasonably request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (iv) not use the Services for any unlawful purpose.
(a) Fees. Buyer shall pay the fees and charges specified in the applicable Order Form or in this Agreement (the “Fees“). The Fees will include: (i) a monthly per-unit subscription fee for ESMART Devices (the “Subscription Fee”) and (ii) charges for Buyer Devices. ESMART may increase the Subscription Fees upon a sixty (60) days’ notice on the anniversary of each contract year. The Subscription Fee will commence (“Subscription Start Date”) 30 days after the Products and Accessories are delivered to the carrier at point of origin. Subscription Fees are prorated for partial months and invoiced in advance (e.g., if ESMART delivers the Products and Accessories to the carrier on June 10, Buyer will receive its first ESMART invoice July 1 reflecting a Subscription Fee that has been prorated to 21 days instead of 31 days for the month of July). Except as otherwise set forth in the Order Form, Buyer will pay: (A) all undisputed Subscription Fees within fifteen (15) days of receipt of an invoice from ESMART, and (B) all charges for Buyer Devices will be collected upon delivery to Buyer.
(b) Taxes. All Fees are exclusive of sales, use, value added and excise taxes imposed by any governmental authority on any amounts payable by Buyer (“Taxes”). Buyer shall be responsible for all such Taxes; provided that, Buyer shall not be responsible for any Taxes imposed on, or with respect to, ESMART’s income, revenues, gross receipts, personal or real property, or other assets. Buyer shall reimburse ESMART for any Taxes paid by ESMART on behalf of Buyer and invoiced in a timely manner.
(c) Late Payments. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Agreement or at law (which ESMART does not waive by the exercise of any rights hereunder), ESMART shall be entitled to suspend the delivery of any Product or Accessory, or the performance of any Service, if Buyer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof. If Buyer fails to pay for Buyer Devices in full when due, such Buyer Devices will be returned to ESMART. For the avoidance of doubt, ESMART will not be liable to Buyer for any loss or damage arising from suspension of delivery or performance, or the return of any Buyer Devices that occurs pursuant to this Section 3(c).
(a) Term. The term of this Agreement will commence on the Effective Date and will thereafter continue in effect until there is no Order Form or Service in effect or scheduled to come into effect, unless terminated earlier in accordance with this Agreement (such period the “Agreement Term”). The term of each subscription for ESMART Devices (“Subscription Term”) will be as set forth in the applicable Order Form. The subscription will renew thereafter on an annual basis at the then-current Subscription Fees, unless and until terminated by either party on 90 days’ prior written notice.
(b) Termination for Cause. In addition to any remedies that may be provided under this Agreement, ESMART may terminate this Agreement (including any Order) and Buyer’s receipt of the ESMART Solution with immediate effect if, in ESMART’s reasonable judgement: (i) Buyer fails to pay any amount not in dispute when due under this Agreement and such failure continues for 30 days after Buyer’s receipt of written notice of nonpayment; (ii) Buyer breaches any material obligation in this Agreement or any Permitted User breaches any material obligation in this Agreement; (iii) Buyer engages in, encourages or participates in any unlawful, deceitful or fraudulent conduct in relation to this Agreement or the ESMART Solution or (iv) Buyer files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Buyer may terminate this Agreement if (i) ESMART materially breaches its obligation to provide Services as required under this Agreement and fails to cure such breach within 60 days of receiving written notice thereof from Buyer, (ii) ESMART engages in, encourages or participates in any unlawful, deceitful or fraudulent conduct in relation to this Agreement or the ESMART Solution or (iii) ESMART files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
(c) Effect of Termination. Upon termination of this Agreement, Buyer must, without limitation: (i) immediately stop using the ESMART Solution, (ii) at ESMART’s option and Buyer’s expense, return or dispose of all ESMART Devices in accordance with applicable law, and (iii) comply with its other obligations under this Section 4. Upon termination of this Agreement (except for any termination pursuant to Sections 4(c)(i)-(iv)), if requested by Buyer, ESMART will issue a pro-rated refund of any prepaid Subscription Fees applicable to the post-termination period. For clarity, ESMART will have no obligation to issue a refund for any amounts paid for Buyer Devices, except as otherwise expressly provided in this Agreement. If, in accordance with Section 4(d)(ii), ESMART instructs Buyer to return ESMART Devices and Buyer fails to return such ESMART Devices to ESMART within 30 days after the termination or expiration of this Agreement or any applicable Order, or the ESMART Devices are not returned in good condition (ordinary wear and tear excepted), then ESMART will charge Buyer, and Buyer shall immediately pay ESMART a fee equal to the purchased unit price per ESMART Device.
(a) This Agreement applies to any person permitted by Buyer to use the ESMART Solution (each, a “Permitted User”). Buyer is responsible for all activities of Permitted Users, including all access to or use of the ESMART Solution. Without limiting the foregoing, it is Buyer’s responsibility to: (i) inform Permitted Users that their access to and use of the ESMART Solution is subject to this Agreement; (ii) obtain the consent of each Permitted User to ESMART’s use of information relating to that Permitted User in accordance with any privacy notice that ESMART provides to Buyer from time to time; and (iii) ensure that Permitted Users comply with the applicable terms of this Agreement and applicable law.
(b) Buyer shall not, and shall ensure Permitted Users do not, remove any protective casing from any Products or Accessories, or modify, disassemble, alter, circumvent, or otherwise tamper with the Products or Accessories or convert the Products or Accessories to any use not authorized by ESMART.
(c) Buyer and Permitted Users may be required to register an account online via the ESMART web portal (the “Portal”) in order to use some of the Services. The Portal is deemed a component of the Solution for purposes of this Agreement. Buyer shall remain solely responsible for Buyer’s and the Permitted Users’ account activity.
(a) As part of the ESMART Solution, ESMART (or its suppliers) has developed certain software that is installed on the Product and Accessories (together with related documentation, the “Software”). The Software is licensed, not sold, to Buyer and Buyer’s (and Permitted Users’) use of and access to the Software shall at all times be governed by this Agreement.
(b) Access and Use.
(i) Provision of Access. Subject to Buyer’s payment of Fees and compliance with all other terms and conditions of this Agreement, ESMART hereby grants Buyer and Permitted Users a limited, non-exclusive, non-transferable license to use the Software during the applicable Subscription Term, subject to the restrictions set forth below.
(ii) Use Restrictions. Buyer shall not, and shall ensure that Permitted Users do not, use the Software for any purposes other than operation of the ESMART Solution. Without limiting the generality of the foregoing, Buyer shall not, and shall ensure that all Permitted Users do not, at any time, directly or indirectly: (A) copy, modify, or create derivative works of the Software, in whole or in part; (B) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, or otherwise transfer the Software; (C) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Software, in whole or in part; or (D) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any applicable law.
(iii) Reservation of Rights. ESMART reserves all rights in Software not expressly granted to Buyer in this Agreement.
(c) Software Updates, Modifications and Deletions.
(i) Buyer acknowledges that, from time to time, ESMART (or a third party provider at ESMART’s direction) may, without any further notice or consent, remotely update, upgrade, or modify the Software for certain reasons, including, without limitation, to enhance the Software or system functionality or stability or to address potential safety or security concerns. If the Software is updated, upgraded or modified, then this Agreement shall apply to such update, upgrade or modification
(a) ESMART Materials. Buyer acknowledges that, as between Buyer and ESMART, ESMART owns all right, title, and interest, including all intellectual property rights, in and to ESMART Materials. “ESMART Materials” means: (A) the Software, (B) user manuals, documentation, handbooks and guides provided by ESMART in connection with the ESMART Solution, and (C) all derivatives of any of the foregoing. For the avoidance of doubt, ESMART Materials do not include Buyer Data.
(b) Buyer Data. Buyer acknowledges that the ESMART Solution will collect data regarding the vehicles in which each Product is installed, which may include, without limitation, location, speed, and fuel information (together with any information provided directly by Buyer in connection with the ESMART Solution, the “Buyer Data”). Buyer hereby grants ESMART permission to copy, store, use, display, and create derivative works from Buyer Data only in connection with developing, supporting, maintaining, or providing the ESMART Solution. For the avoidance of doubt, the foregoing permission shall be worldwide, non-exclusive, and royalty-free.
(c) Trademarks. Any trademarks, logos, and service marks (collectively, “Marks”) displayed on or in connection with the Product, Accessories or Services are the registered and/or unregistered trademarks of ESMART or other third parties. Nothing contained in this Agreement, the Product, Accessories or the Services should be construed as granting any license or right to Buyer to use or display any Mark or any variation thereof without the written permission of ESMART or the third party owner thereof.
(d) Feedback. Consistent with this Agreement, Buyer and Permitted Users may provide feedback regarding the ESMART Solution. Any information or materials that Buyer and Permitted Users submit in connection with providing such feedback (“Feedback”) is not considered confidential by ESMART and ESMART has no obligation to keep the Feedback confidential or to return or destroy any Feedback. Feedback is submitted voluntarily and without restriction and ESMART is free to use and disclose any Feedback in any manner without any notification, payment, attribution or other obligation to Buyer or Permitted Users.
The Services rely on wireless communication networks and the Global Positioning System (“GPS”). Not all Services are available everywhere (particularly in remote or enclosed areas) or at all times. Services that use location information about vehicles only work if GPS satellite signals are unobstructed, available in that place and compatible with such vehicle’s systems. In particular, the Products or Services may not work in a vehicle if: (i) the vehicle was manufactured before 2002, (ii) the Product is improperly installed; (iii) the Product has not been maintained in good working order; (iv) systems of the vehicle are not fully functional (e.g., electrical); or (v) a Force Majeure event occurs.
(a) Subject to the conditions, limitations, and exclusions set forth in this Agreement, ESMART warrants to Buyer that the Product and Accessories will be free from defects in materials and workmanship for the following periods: (i) For Buyer Devices: 3 years from the date of purchase for the Product, but only 1 year from the date of purchase for the Accessories (such periods, in either case as applicable, a “Warranty Period” and such warranty, the “Limited Warranty”) and (ii) for ESMART Devices: for the duration of Buyer’s subscription.
(b) Subject to the conditions, limitations, and exclusions set forth in this Agreement, if an upgrade of the Product or Accessories is necessary for the continued functioning of the ESMART Solution (in the same or substantially similar fashion as of the Effective Date), and such upgrade requires physical modification of the Product or Accessories, then ESMART will supply the necessary components at no additional cost to Buyer during the following periods: (i) for ESMART Devices, at any time during the applicable Subscription Term subject to an extension of the applicable Subscription Term of 36 months and (ii) for Buyer devices, for the 24 months following the Effective Date (the “Upgrade Period”). If ESMART notifies Buyer that a Product or Accessory must be replaced for safety reasons, Buyer shall comply with all ESMART instructions and cooperate in good faith with all ESMART efforts to replace such Product or Accessory.
(a) ESMART shall not be liable for a breach of the Limited Warranty unless Buyer: (i) delivers written notice of a claim of a defect in a Product or Accessory, including sufficient detail and evidence to assess the claim, to ESMART and (ii) complies with ESMART’s reasonable instructions regarding the inspection and return of the defective Product or Accessory, including (if applicable) allowing ESMART personnel to inspect the Product or Accessory as installed in the applicable vehicle.
(b) With respect to Products and Accessories, ESMART shall not be liable for a breach of the Limited Warranty if: (i) the defect arose because Buyer or the Permitted Users failed to follow ESMART’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product or Accessory; (ii) the Product or Accessory has been serviced, altered or repaired by anyone not certified by ESMART to provide such services; or (iii) the Product or Accessory was damaged as a result of a collision, improper use or misuse, misapplication, abusive operation, insufficient care, negligence, lack of proper upkeep, use of improper tools or substances on the components, or modifications made to the Product or Accessory without the authorization of ESMART. If an ESMART Device requires replacement for any of the foregoing reasons, ESMART may charge, and Buyer shall pay, a replacement fee of up to ESMART’s latest retail list price for the unit.
(c) Buyer’s sole remedy and ESMART’s sole liability for a breach of the Limited Warranty shall be: (i) for the Products and Accessories that are ESMART Devices, to replace the malfunctioning ESMART Devices with similar items, at no charge, and (ii) for the Products and Accessories that are Buyer Devices, to, at ESMART’s option, (A) repair or replace the malfunctioning Product or Accessory with a similar item at no charge or (B) refund the purchase price of the applicable Product or Accessory, pro-rated for the duration left on the Warranty Period at the time ESMART was notified of the defect.
(d) EXCEPT FOR THE LIMITED WARRANTY AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAWS, (i) ESMART MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS FOR THE ESMART SOLUTION AND ALL COMPONENTS THEREOF AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR USE (WHETHER OR NOT THE PURPOSE HAS BEEN DISCLOSED), TITLE, NON-INFRINGEMENT, COURSE OF DEALING, USAGE, OR TRADE PRACTICE, (ii) ESMART MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING THE UPTIME, AVAILABILITY OR COMPLETENESS OF THE ESMART SOLUTION AND ALL COMPONENTS THEREOF OR OUTPUT THEREOF FOR CIRCUMSTANCES BEYOND ITS CONTROL SUCH AS LOSS OF NETWORK SIGNAL AVAILABILITY, (iii) ESMART MAKES NO WARRANTY OF ANY KIND THAT THE ESMART SOLUTIONS AND ALL COMPONENTS THEREOF, OR RESULTS OF THE USE THEREOF, WILL MEET BUYER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, WILL BE ERROR FREE OR FREE FROM MALWARE OR OTHER INFIRMITY OR CORRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE OR SYSTEM OR BE SECURE, OR ACCURATE.
(e) BUYER SHALL BE SOLELY RESPONSIBLE FOR (i) THE SUPERVISION, MANAGEMENT AND CONTROL OF THE USE OF THE ESMART SOLUTION AND ALL COMPONETS THEREOF, (ii) CONFIGURING THE ESMART SOLUTIONS AND ANY COMPONENTS THEREOF AND SETTING BUYER LIMIT EXPOURES TO ERRORS, FAILURES, RISKS AND COMPLIANCE WITH APPLICABLE LAWS, (iii) ESTABLISHING AND ENSURING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF THE ESMART SOLUTION, AND (iv) DETERMINATION OF APPROPRIATE USES THEREOF IN ORDER TO ACHIEVE BUYER’S INTENDED RESULTS.
(f) THE REMEDIES SET FORTH IN SECTION 10. SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTY. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE ESMART SOLUTION OR EXTEND OR ENLARGE THE LIMITED WARRANTY CONTAINED HEREIN.
(a) EXCEPT FOR CLAIMS THAT ARE NON-EXCLUDABLE AS A MATTER OF LAW, AND TO THE EXTENT ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ESMART OR ESMART’S INDEMNIFICATION OBLIGATIONS HEREUNDER, UNDER NO CIRCUMSTANCES WILL ESMART, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR AGENTS (COLLECTIVELY, “ESMART PARTIES”) BE LIABLE IN CONNECTION WITH THE ESMART SOLUTION OR THIS AGREEMENT FOR ANY COSTS, LOSSES, OR DAMAGES WHATSOEVER, INCLUDING INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (EVEN IF ESMART IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND INCLUDING WITHOUT LIMITATION LOSS OF DATA, INCOME OR GOODWILL) . IF THE FOREGOING LIMITATION OF LIABILITY SHOULD BE DEEMED UNENFORCEABLE TO ANY EXTENT UNDER APPLICABLE LAW, THE ESMART PARTIES WILL NOT, IN ANY EVENT, BE LIABLE IN CONNECTION WITH THE ESMART SOLUTION OR THIS AGREEMENT FOR ANY AMOUNT IN EXCESS OF $10,000 IN THE AGGREGATE.
(b) The limitations and exclusions of liability set forth in this Section REFLECT THE PARTIES’ ALLOCATION OF RISK AND WILL apply irrespective of the form of action AND under ANY LEGAL THEORY which liability may be alleged, whether IN TORT, contract, STRICT LIABILITY or otherwise, even where a party was aware of the possibility of such damages, the damages were foreseeable, or any remedies hereunder fail of their essential purpose.
(a) ESMART shall indemnify, defend, and hold harmless Buyer, its affiliates, and its and their respective licensors, employees, officers, directors and agents (collectively, “Buyer Indemnitees”) from and against any and all losses, damages, injuries, claims, interest, demands and expenses, including reasonable legal fees and expenses, of any kind resulting from any third-party claim that the ESMART Solution or ESMART Materials (or any part thereof) infringes, misappropriates or otherwise violates the intellectual property of any third party; provided that such indemnity shall not apply if the claim would not have arisen but for Buyer’s or its Permitted Users’ (A) use of third party materials not provided or approved by ESMART, (B) Buyer’s unauthorized modification of the ESMART Materials or the ESMART Solution (or any part thereof), (C) failure to use corrections or enhancements made available by ESMART that do not materially adversely impact functionality or operations, or (D) use of the ESMART Materials or ESMART Solution in combination with any product or information not contemplated by this Agreement. ESMART may not settle any third party claim against a Buyer Indemnitee unless such Buyer Indemnitee consents to such settlement. A Buyer Indemnitee will have the right, at its option, to participate in the defense of a third party claim subject to indemnification, at the Buyer Indemnitee’s own expense with counsel of its own choice. In the event the ESMART Solution or ESMART Materials become, or in ESMART’s reasonable opinion, is likely to become, the subject of a claim that the ESMART Solution or ESMART Materials (or any part thereof) infringes, misappropriates or otherwise violates the intellectual property of any third party, ESMART may, at its option and expense, either: (1) procure for Buyer and its Permitted Users the right to continue use of such affected ESMART Materials or the ESMART Solution, or any component thereof, or (2) replace or modify such affected ESMART Materials or the ESMART Solution so as to make them non-infringing or to avoid such misappropriation or violation while providing equivalent functionality and features.
(b) Buyer shall indemnify, defend, and hold harmless ESMART, its affiliates, and its and their respective licensors, employees, officers, directors and agents (collectively, “ESMART Indemnitees”) from and against any and all losses, damages, injuries, claims, interest, demands and expenses, including reasonable legal fees and expenses, of any kind resulting from any claim arising out of Buyer’s (or a Permitted User’s) negligence or willful misconduct. Buyer may not settle any third party claim against an ESMART Indemnitee unless such ESMART Indemnitee consents to such settlement. An ESMART Indemnitee will have the right to participate in the defense of a third party claim subject to indemnification at the ESMART Indemnitee’s own expense with counsel of its own choice.
Buyer and all Permitted Users shall, obey all laws, rules, ordinances and regulations governing the operation of the applicable vehicle. Buyer and its Permitted Users will not, access or use the ESMART Solution in a manner that violates any law, rule, ordinance, or regulation. Without limiting the foregoing, it is Buyer’s sole responsibility to exercise, and ensure Permitted Users exercise, discretion and observe all safety measures required by law, rules, ordinances and regulations while accessing or using the ESMART Solution (including the handling and disposal of Products subsequently uninstalled from a Vehicle). ESMART and all of its employees, agents, and contractors shall, obey all laws, rules, ordinances and regulations in providing the services and ESMART Solution. The ESMART Solution should be accessed and used only when Buyer or Permitted Users can safely operate Each party shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. In the event that any change in applicable law after the Effective Date affects (a) Buyer’s ability to lawfully use the ESMART Solution, in whole or in part, for its intended purposes or (b) ESMART’s ability to lawfully provide the ESMART Solution, in whole or in part, for its intended purposes, and in each case, the parties are unable to negotiate any additions or changes to this Agreement that may be necessary or appropriate to enable Buyer’s continued lawful receipt, and ESMART’s continued lawful delivery, of the ESMART Solution, then either party may terminate this Agreement (with immediate effect) and ESMART shall refund Buyer any prepaid amounts and Product costs.
The Product or Software may be subject to export control laws and regulations, including the Export Administration Regulations. Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export, or release the Product, Accessories or Software to any jurisdiction or country to which, or any party to whom, the export, re-export, or release of any Products, Accessories or Software is prohibited by applicable federal or foreign law, regulation, or rule. Buyer is responsible for any breach of this paragraph by Permitted Users or Buyer’s, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, agents, distributors, resellers, or vendors.
All non-public, confidential or proprietary information of either party, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”, in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party in writing. Upon expiration or termination of this Agreement and at the disclosing party’s request, the receiving party will promptly return or destroy all documents and other materials received from the disclosing party. The disclosing party will be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third party.
Neither party will be liable or responsible, nor be deemed to have 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 or circumstances beyond the reasonable control of that party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions (including changes in laws, rules, ordinances, regulations, or orders), war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown or power outage, equipment failures (including Internet and computer failures), the existence of hills, tall buildings, or tunnels (with respect to Services that use location information about a vehicle), the electrical system design and architecture of a vehicle, or damage to parts of a vehicle in an accident (each a “Force Majeure Event”).
Neither party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves a party of any of its obligations under this Agreement.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, including without limitation all claims related to its subject matter (whether sounding in contract, tort, or otherwise). The parties disclaim the application of (a) any choice of law principle that would apply the substantive laws of another jurisdiction; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; and (c) other international laws.
(b) ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY ARBITRATION BY ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. THE PARTIES SHALL MAINTAIN THE CONFIDENTIAL NATURE OF THE ARBITRATION PROCEEDING AND THE AWARD, INCLUDING THE HEARING, EXCEPT AS MAY BE NECESSARY TO PREPARE FOR OR CONDUCT THE ARBITRATION HEARING ON THE MERITS, OR EXCEPT AS MAY BE NECESSARY IN CONNECTION WITH A COURT APPLICATION FOR A PRELIMINARY REMEDY, A JUDICIAL CHALLENGE TO AN AWARD OR ITS ENFORCEMENT, OR UNLESS OTHERWISE REQUIRED BY LAW OR JUDICIAL DECISION.
All notices in connection with this Agreement shall be in writing and delivered by email. If receipt of the email notice is not promptly confirmed, the party providing notice must also send a copy by nationally-recognized overnight courier. Notices to Buyer shall be sent to the email address and physical address set forth in the Order Form. Notices to ESMART shall be sent to:
ESMART LLC
8219-100 Northwest Blvd.
Indianapolis, IN 46278
Attention: Legal
Email: [email protected]
Either party may update its addresses for receipt of notice under this Section by sending notice of the change pursuant to this Section.
(a) Waiver. No waiver of any right under this Agreement is effective unless explicitly set forth in writing. No failure to exercise, partial exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof or preclude the exercise of any other right, remedy, power or privilege.
(b) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(c) Survival. Provisions of this Agreement which by their nature should apply beyond the termination or expiration of this Agreement will remain in force after any such termination or expiration of this Agreement.
(d) References; Headings; Interpretation. In this Agreement, the article and section headings are for convenience of reference only and will not be considered in the interpretation of this Agreement. Examples given in this Agreement, which may be preceded by “including,” or similar language, are solely intended to be illustrative and are not limiting. Except where the context otherwise requires, wherever used the singular shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders (including masculine, feminine and neuter), and the words “or”, “and”, and “any” are used in the inclusive sense.
(e) Complete Agreement; Amendment and Modification. This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each part
Access the latest version of these Terms and Conditions at: esmartcontrol.com/terms.
By proceeding with any purchases, you acknowledge and agree to these terms.
For any issues regarding this Agreement, contact us at:
ESMART LLC
8219-100 Northwest Blvd.
Indianapolis, IN 46278
Email: [email protected]
Section 1:
Privacy Policy
Last updated: 14/02/2024
ESMART recognizes the importance of protecting your personal information, and this Privacy Policy explains our privacy practices when it comes to using, sharing, and protecting the information we collect when you visit websites or other online services that link or refer to this Privacy Policy (collectively, the “Sites”). We also provide specific information about our privacy practices related to the ESMART Dynamic Speed Management System (“ESMART”) below.
Section 2:
ESMART Privacy Notice
This Section describes ESMART’s data collection, use, and handling practices when the ESMART Dynamic Speed Management System is installed in a vehicle.
What information is collected through ESMART and how is it used?
ESMART collects vehicle information, such as Odometer, VIN, engine power, and other information that helps ESMART and fleet managers analyze and improve road safety, and identify vehicles and equipment. This includes information about vehicle speed, use of cruise control, and other information about driving behavior. ESMART also collects geolocation information (latitude and longitude) about vehicles in real time, as part of its functionality. This information collectively is referred to herein as your “ESMART Data.”
We use ESMART Data to operate and provide our products and services, including to provide information and other analyses to the applicable fleet manager’s account and for customer support purposes. We also use ESMART Data to conduct research and analysis, improve the quality of our ESMART services, develop new features or products, and for other purposes to which you or the applicable fleet manager consents.
Is ESMART Data Shared with Third Parties?
ESMART Data is accessible to a vehicle’s fleet manager via the web portal. We are not responsible for the privacy practices of fleet managers. To find out more about how a fleet manager uses ESMART Data, please contact the fleet manager directly. ESMART Data may also be shared with certain business partners with whom we jointly provide or market products and services, as well as for the other purposes described below, under “How We Share Information.” As described below, we also may collect and share with third parties data that does not identify any individual driver or that is aggregated.
Other Information We Collect
When you visit the Sites, we also collect the following types of information:
Information You Provide to Us. When you choose to register for our Sites, sign up to receive our newsletter, contact us with questions or feedback, or otherwise provide information directly to us, we may ask you to provide information such as your name, e-mail address, postal address, phone number, or other information.
Information about Your Use of the Sites. We also may collect certain information automatically when you use our Sites, including through technologies such as cookies, web beacons, and local stored objects. For example, we may collect your browser type and operating system, IP address, and information about your usage of the Sites.
We may receive additional information about you from other sources, including publicly and commercially available sources. We may combine such information with information we have collected about you in other ways.
How We Use Information
How We Share Information
In addition to the ways in which we share ESMART Data described above, we may share ESMART Data and other information that we collect and receive with third parties as follows:
Affiliates. We may share your information with our current and future affiliated entities.
Service Providers. We may need to share your information with third-party service providers that provide a variety of services on our behalf. For example, we may rely on service providers to host our Sites and data, manage databases, or send communications for us.
Business Partners. We may share your information with select business partners where permitted by law so that they can provide you with materials that may be of interest to you. These business partners are expected to protect the confidentiality, integrity, and security of the information we share with them. However, we are not responsible for the privacy practices of our business partners, which may use your information for their own purposes.
Other Parties When Required by Law. We may disclose your information to third parties when required or permitted by applicable law, such as to respond to lawful government requests or legal process, or to protect our rights or property.
Other Parties in Connection with a Corporate Transaction. In the event that we sell or transfer all or a portion of our business or assets to a third party, such as in the event of a merger, acquisition, or in connection with a bankruptcy reorganization, we reserve the right to transfer any information we have about you.
Aggregate Information. We may disclose to third parties information that does not identify any individual, such as information that has been aggregated.
Otherwise with Your Consent or at Your Direction. We may also share your information with third parties when you consent to such sharing.
Links to Third-Party Sites and Services
The Sites may contain links to other websites or services that are outside of our control. We are not responsible for the security or privacy protection of any information collected by third-party websites or services. We encourage you to review the privacy policies of the websites and services you use.
Cookies, Web Beacons, and Other Technologies
We, as well as certain third parties, may use cookies and other similar technologies on our Sites.
Cookies
A cookie is a small file that is placed on your computer when you visit a website. Cookies may be used to store a unique identification number associated with your computer or device so that you can be recognized across multiple browsing sessions and websites. You may be able to configure your browser not to accept cookies or to notify you when a cookie is being sent. To learn more about how to disable cookies, refer to your browser’s help menu. Please note that if you disable cookies, this may interfere with the proper functioning of our Sites.
Other Technologies
We also may use other storage technologies, such as web beacons (or “pixels”), Local Shared Objects (or “Flash cookies”) and HTML5 local storage, in connection with our Sites. These technologies are similar to cookies, described above, in that they are stored on your device and can be used to maintain information about your activities and preferences. Beacons can be used, for example, to count the number of users that visit a website or read an e-mail, or to deliver or communicate with cookies. Certain of these technologies may use parts of your device other than your browser and you may not be able to control them using standard browser tools and settings. For information about disabling Flash cookies, please visit the Adobe Flash Player website.
Children’s Privacy
We do not knowingly collect, use, or disclose personal information from children as defined by applicable local law, except as permitted by local law.
Do-Not-Track Signals
Some web browsers may transmit “do-not-track” signals to the websites with which the user communicates. Because of differences in how web browsers incorporate and activate this feature, it is not always clear whether users intend for these signals to be transmitted, or whether they are even aware of them. Because there is no industry standard concerning what, if anything, websites should do when they receive such signals, we currently do not take action in response to these signals.
Data Security
We have in place physical, technical, and administrative security procedures. However, please note that no transmission or storage of data is 100% secure. Therefore, although we have security measures in place, we cannot guarantee the security of any information you disclose or transmit to our Sites.
Changes to this Privacy Policy
If we decide to modify our Privacy Policy, we will post those changes here or notify you by other appropriate means. Your continued use of our Sites following any changes indicates your acceptance of these changes.
Contact Us
If you have questions or concerns about this Privacy Policy or our privacy practices, please contact us here or write to us at the following address:
ESMART LLC
8219-100 Northwest Blvd.
Indianapolis, IN 46278
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