Subscription Terms & Conditions | Ford Pro™

Terms and Conditions

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FORD PRO SUBSCRIPTION sERVICES Terms & ConditionS

These Subscription Services Terms and Conditions(these “T&Cs”), together with all Sales Orders, including any attachments thereto,  represent a legally binding agreement between Customer and Ford Pro, effective upon Customer’s acceptance hereof by clicking the “Accept” button or execution of the applicable Sales Order as permitted by Section 9(m) (the earlier of the date of Customer’s acceptance hereof or execution of the applicable Sales Order, the “Effective Date”).  Customer and Ford Pro are occasionally referred to herein as the “Parties” or, individually, as a “Party.”

Subject to Section 9(d), these T&Cs apply to the Services and the Additional Services offered by Ford Pro or any of its Affiliates or business units, including Ford Pro Intelligence, any Representative with which Ford Pro has contracted to provide any portion of the Services or Additional Services or any third party with which Customer will be prompted, by its use of the Services or Additional Services, to contract directly by signing an additional agreement or agreeing to additional terms.  For the avoidance of doubt, the Services and the Additional Services that are provided pursuant to these T&Cs do not include any Data Services.

1.               LIMITED LICENSES TO USE SERVICES.  Subject to, and on the terms and conditions of, these T&Cs, Customer hereby purchases from Ford Pro, and Ford Pro hereby grants to Customer, a non-exclusive, nontransferable, non-sublicensable, revocable, limited license for Use of the Services in the Territory during the Term.  Notwithstanding the foregoing, Ford Pro retains all right, title and interest in and to the Services.  If Customer permits any Person, including its Operators, Representatives or customers, to access Customer’s Fleet Account and use the Services (or any portion thereof), all actions taken by those users will be treated as actions taken by Customer for all purposes hereunder and shall be in compliance with these T&Cs.  A Service is specific to the associated Connected Vehicle and is non-transferable.  Additional Connected Vehicles enrolled under the Fleet Account will require their own Services.

2.               ACTIVATION; ADDITIONAL SERVICES.

(a)             Enrollment.  Prior to submitting any Sales Order, Customer must (i) hold a valid Fleet Identification Number that has been provided to Customer by Ford Pro, or (ii) have been otherwise validated by Ford Pro as a fleet owner or operator.  Submission of a Sales Order is an offer to purchase a subscription Service from Ford Pro.  Prior to enrollment of any Connected Vehicles, Customer must complete the checkout process, which may include accepting these T&Cs or additional Service Agreements with respect to such Connected Vehicles and related Hardware and providing applicable payment and invoicing details.  Some Sales Orders may provide an on-screen acknowledgment of the submission, but such acknowledgment may not serve as acceptance by Ford Pro of the Sales Order, as certain Services require additional time for processing.  In such event, Ford Pro will provide Notice (via email) of its acceptance of the Sales Order and, if Ford Pro does not accept the Sales Order, Ford Pro will provide prompt Notice (via email) of such decision.  Ford Pro reserves the right, in its sole discretion, to accept or reject any Sales Order for any reason or for no reason.

(b)             Activation; Deactivation.  Certain Services may require additional activation or enrollments, including activation of Hardware and Connected Vehicles.  In such event, Ford Pro will provide Customer with applicable instructions, which may include accessing the Fleet Account and enrolling eligible Connected Vehicles, either individually or via batch upload, for activation.  Customer may deactivate a Connected Vehicle modem at any time through its Fleet Account.  If Customer becomes aware that the ownership of any Connected Vehicle has changed or that any of its Operators have withdrawn their Consent to participate in the Services, Customer shall promptly (i) advise Ford Pro of such change or withdrawal, and (ii) unenroll the affected Connected Vehicle from the Fleet Account.  Failure to unenroll any such Connected Vehicle shall be grounds for immediate termination of these T&Cs and all Services hereunder without Notice.

(c)             Additional Services.  Certain Services may integrate with, or contain links to, other websites or services that are operated by, or are operated on Ford Pro’s behalf by, a third party (collectively, “Additional Services”).  Additional Services may be subject to additional terms and conditions (including via a Service Agreement) that may be presented in connection with their use, and prior to using an Additional Service, Customer must agree to any applicable terms and conditions.  Additional Services may be operated by Ford Pro or its Affiliates or third parties, including links to websites or services from dealers (each, a “Third Party Service”).  To the fullest extent permitted by Applicable Law, Ford Pro assumes no responsibility for, and Customer hereby releases Ford Pro from any and all Losses arising from, relating to or in connection with, Customer’s use of, any Third Party Services.

3.               PRICING AND PAYMENT TERMS.

(a)             Fees; Invoicing; Payments.  Customer shall pay to Ford Pro the monthly fees set forth in the Sales Order for the currently enrolled Services, including any fees associated with the use of the Services (e.g., consumption of electricity for Public Charging or maintenance Services).  Fees for the Services will commence upon the earlier of (i) activation of the relevant Hardware or Connected Vehicle as specified in Section 2 and (ii) the date that is thirty (30) days after the date on which the relevant Hardware or Connected Vehicle is delivered to Customer.  For the avoidance of doubt, fees for the Services may become due and payable by Customer notwithstanding Customer’s failure to activate its Fleet Account (whereby it accesses such Services), or any Hardware or Connected Vehicle associated therewith.  Invoices shall be provided periodically under these T&Cs and shall be payable by Customer in U.S. dollars within thirty (30) days after the date of, or as otherwise specified in, the applicable invoice; provided, that use of Services across regions (e.g., U.S. and Canada) or currencies may result in separate invoicing.  Applicable Taxes will not be calculated until the time of invoicing.  For pre-paid accounts, periodic invoices will reflect amounts paid, and any pre-paid amounts are non-refundable.  Ford Pro retains the right to change any of the pricing or fees set forth in the Sales Order by providing Notice thereof to Customer at least thirty (30) days’ prior to implementation of such change.

(b)             Taxes.  Prices do not include any Taxes that may apply to the sale or provision of Services.  Customer shall be responsible for all such Taxes (excluding, for the avoidance of doubt, income taxes imposed on Ford Pro’s net income), and Customer agrees to pay or reimburse, via payment to Ford Pro, any such Taxes which Ford Pro is required to pay or collect.  If Customer is exempt from the payment of any applicable sales Tax or holds a direct payment permit, Customer shall, upon submission of the Sales Order (or, with respect to periodic fees associated with Customer’s use of the Services, payment of the invoice), provide Ford Pro a copy, reasonably acceptable to Ford Pro, of any such exemption certificate or permit, and Ford Pro must approve such permit prior to Customer’s activation of any Services.  If Customer is required by Applicable Law to withhold or deduct any amount from the price payable to Ford Pro under any invoice, the sum payable by Customer shall be increased to the extent necessary to ensure that Ford Pro receives a sum equal to the amount that Ford Pro would have received had no such withholding or deduction been made.  The Parties agree to reasonably cooperate to ensure that no more Taxes are payable other than as required by Applicable Law, and to obtain a refund or credit of any Taxes that have been overpaid.

(c)             Customer Onboarding Process.  To the extent Customer’s established internal procedures require Customer to use its own purchase order to process payments, Customer will use its best efforts to ensure that Ford Pro is correctly identified and provided for in Customer’s accounts payable system, and Ford Pro will use commercially reasonable efforts to accommodate such process.  Customer shall, at the time of completing such process and supporting Ford Pro’s ongoing use of Customer’s accounts payable system.  Customer agrees to remit payment to Ford Pro as specified in these T&Cs or as Ford Pro may, in its sole discretion, accommodate with respect to such onboarding process.  The terms of any such Customer-provided purchase order shall not be binding upon Ford Pro and shall not, and shall not be deemed to, amend, supersede or otherwise modify the these T&Cs or any Sales Order in any way.  For the avoidance of doubt, any such purchase order submitted by Customer shall be subject in all respects to the provisions of these T&Cs, including Section 9(m).

(d)             Disputed & Late Payments.  To the extent Customer disputes any amounts included in an invoice, Customer shall provide Notice to Ford Pro no later than fifteen (15) days after the date of such invoice, specifying in detail all disputed invoice amounts.  The Parties will seek to resolve any such Dispute expeditiously and in good faith.  Each Party will continue performing its obligations under these T&Cs, notwithstanding such Dispute.  Disputed invoices are not subject to reduction or set-off by Customer without Ford Pro’s prior written approval.  Finance charges will vary by market, but will always be the lesser of the amount stated in the applicable invoice or, if lower, the maximum rate permitted by Applicable Law, calculated daily and compounded monthly, and shall accrue on any late payments until paid in full, whether or not such amounts were withheld subject to a Dispute, and Customer will reimburse Ford Pro for all costs incurred in collecting any late payments, including reasonable attorneys’ fees.  Ford Pro reserves the right to deactivate any Services or Additional Services if any Invoice amounts are past due, and Customer shall be responsible for any reactivation costs or other related fees imposed or incurred by Ford Pro in connection therewith.  Ford Pro will provide an Invoice for any such amounts, which Customer will pay as specified in Section 3(a).  EXCEPT AS OTHERWISE SPECIFIED HEREIN OR IN A SALES ORDER, ALL PAYMENT OBLIGATIONS ARE NONCANCELLABLE AND NON-REFUNDABLE, INCLUDING IN THE EVENT OF CANCELLATION BY CUSTOMER.

4.               TERM, TERMINATION, CANCELLATION & DISCONTINUATION.

(a)             Term.  These T&Cs commence on the Effective Date and shall remain in effect for the applicable term indicated on the Sales Order (such period, the “Initial Term”), unless earlier terminated in accordance with this Section 4.  Notwithstanding the foregoing, in the case of a complimentary trial offered in a proposal document or otherwise made available to Customer, the Initial Term of such complimentary trial will commence on the Effective Date or, as applicable to such complimentary trial, on the warranty start date of the applicable Connected Vehicle, regardless of whether Customer has first enrolled in such Service, and shall continue until that complimentary trial concludes (or is earlier terminated).  CERTAIN SERVICES HAVE A DEFINED EXPIRATION DATE AND WILL EXPIRE UNLESS CUSTOMER PURCHASES AN ADDITIONAL TERM OF THE SERVICE; OTHER SERVICES WILL AUTOMATICALLY RENEW FOR SUCCESSIVE TERMS (EACH, A “RENEWAL TERM”, AND THE INITIAL TERM, TOGETHER WITH ANY RENEWAL TERM(S), THE “TERM”), UNLESS EITHER PARTY PROVIDES NOTICE OF ITS INTENTION NOT TO RENEW AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION DATE OF THE THEN-CURRENT TERM OR CUSTOMER OTHERWISE CANCELS ITS FLEET ACCOUNT AND ALL SERVICES AS PROVIDED IN SECTION 4(f).  For questions regarding the Initial Term or any Renewal Term applicable to a Service, Customer should contact the Customer Relationship Center at 1-833-327-3673 or fcs1@ford.com.

(b)             Termination; Effects.  Each Party may terminate these T&Cs, in each case upon the specified Notice, (i) in the event of a Change of Control of Customer, (ii) in the event of the other Party’s, material breach of its obligations, unless Cured, or Insolvency; (iii) upon thirty (30) days’ advance Notice of termination; or (iv) as otherwise provided in these T&Cs.  A terminating Party shall give thirty (30) days’ advance Notice of termination, except in the case of a Change of Control of Customer, where Ford Pro may terminate as set forth in Section 9(n), or Insolvency, where a Party may terminate immediately upon Notice.  If, in either Party’s reasonable discretion, a material breach cannot be Cured, the non-breaching Party may immediately, upon Notice, terminate these T&Cs, and such termination will be treated as a termination for cause pursuant to this Section 4(b).  Upon expiration or termination of these T&Cs for any reason permitted pursuant to this Section 4(b), all rights and obligations of the Parties under these T&Cs, other than those that are specified in Section 9(l) as surviving termination or expiration, will cease.  Termination of these T&Cs by either Party or expiration of these T&Cs will not limit a Party from pursuing any other remedies specified in these T&Cs as being available to such Party, nor will termination by Customer release Customer from its obligation to pay all invoices (whenever issued).

(c)             Suspension of Services.  If Customer does not submit timely payment of undisputed amounts in accordance with these T&Cs, or if Customer is otherwise in breach of these T&Cs, Ford Pro may, in addition to any other rights or remedies available to it, immediately suspend Customer’s access to the Services and, as appliable, Additional Services.  During any suspension period, Ford Pro may continue to collect Data as specified in these T&Cs from enrolled Connected Vehicles, and Customer’s access to the Services and, as applicable, the Additional Services shall be restored promptly upon Customer’s Cure of such breach.  If Customer’s access to Services is suspended more than twice, Ford Pro may elect to immediately terminate these T&Cs and all Services and, as applicable, Additional Services hereunder.

(d)             Discontinuation; Changes to Services.  Ford Pro may discontinue or change, update, improve, correct or otherwise modify portions of the Services from time to time upon reasonable advance Notice to Customer.  On the effective date of such discontinuation, Ford Pro will stop performing its obligations under these T&Cs with respect to such discontinued Services.  Certain Services may not be available during maintenance breaks or at other times due to factors outside of Ford Pro’s control.

(e)             Cancellation by Customer.  Customer may cancel its Fleet Account or any Services, or report any mistake or error with respect to the same, by contacting the Customer Relationship Center at 1-833-327-3673 or fcs1@ford.com.  Customer may cancel a Service with respect to a Connected Vehicle (or set of Connected Vehicles), without terminating these T&Cs; however, cancellation of all Services will result in immediate termination of these T&Cs other than with respect to any terms and conditions that by their express terms survive such termination.

5.               LIMITED WARRANTY; INDEMNITIES.

(a)             Limited Warranty and Disclaimer.  Ford Pro’s sole limited warranty to Customer, which is not available to Operators or any other Person that Customer permits to access its Fleet Account, is that Ford Pro holds sufficient right, title and interest in and to the Services to grant, subject to the terms and conditions of these T&Cs, the limited license granted in Section 1 (the “Limited Warranty”) to Customer.  Customer’s exclusive remedy, and Ford Pro’s entire liability, for any breach of this Limited Warranty will be that Ford Pro will undertake commercially reasonable efforts to correct the deficiency that caused the breach.  If Ford Pro determines that it cannot provide such remedies in a commercially reasonable manner, in Ford Pro’s sole discretion, Ford Pro may discontinue the applicable Services as specified in Section 4(e) or terminate these T&Cs. 

(b)             EXCEPT FOR THIS LIMITED WARRANTY, THE SERVICES (INCLUDING ANY TRANSFORMED VEHICLE DATA PROVIDED AS A PART THEREOF) ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR CUSTOMER’S USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND CUSTOMER AGREES THAT IT HAS NOT RELIED UPON ANY WARRANTY, WHETHER EXPRESS OR IMPLIED.  WITHOUT LIMITING THE FOREGOING, FORD PRO DOES NOT WARRANT THAT (i) CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM ERROR, OR MEET CUSTOMER’S REQUIREMENTS; (ii) ALL CONTENT AND OTHER INFORMATION OBTAINED BY CUSTOMER FROM OR IN CONNECTION WITH THE SERVICES WILL BE ACCURATE AND RELIABLE; OR (iii) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED.  ALL CONTENT OBTAINED THROUGH THE SERVICES IS OBTAINED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR OTHER DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.

(c)             Indemnification.

(i)              Subject to the limitations specified in Section 5(a), Section 5(c)(iii) and Section 5(c)(iv), and only to the extent not subject to the Limited Warranty, each Party (as applicable, the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party and its Representatives (collectively, the “Indemnified Party”) from and against any and all Claims or Losses to the extent arising from, relating to or in connection with the Indemnifying Party’s: (A) material breach of these T&Cs; (B) gross negligence, recklessness, or willful misconduct in connection with performance under these T&Cs; or (C) infringement of a third party’s Intellectual Property rights arising from the grant of any Intellectual Property license to the Indemnified Party, provided that the Indemnified Party’s usage of the Intellectual Property is on a fully authorized basis and as specified in these T&Cs.  In furtherance of this Section 5(c)(i), an Indemnifying Party’s obligations with respect to a Claim of alleged infringement of Intellectual Property applies solely to the extent that infringement is specifically pled in the relevant Claim by the third party.

(ii)             Indemnification Procedures.  Upon learning of any actual or threatened Claim or Loss subject to indemnification pursuant to Section 5(c)(i), the Indemnified Party promptly shall provide Notice thereof to the Indemnifying Party (an “Indemnification Notice”).  The Indemnifying Party, at its own expense, shall defend the Claim with counsel reasonably acceptable to the Indemnified Party.  The Indemnified Party, at its own expense, may participate in such defense using counsel of its choice.  If the Indemnifying Party fails or refuses, within thirty (30) days of receiving the Indemnification Notice, to commence or to adequately continue the defense of the Claim, the Indemnified Party may provide Notice to the Indemnifying Party of its assumption of the defense and right to unilaterally settle any Claim.  Except to the extent an Indemnified Party has taken over the defense of a Claim, no settlement of any Claim may be made by either Party without the other Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.

(iii)            Consequential Loss.  IN NO EVENT WILL ANY PARTY OR ITS AFFILIATES OR REPRESENTATIVES BE LIABLE UNDER THESE T&CS (INCLUDING UNDER THIS SECTION AND THE LIMITED WARRANTY) FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR COMPARABLE DAMAGES, HOWEVER CAUSED, INCLUDING ECONOMIC LOSSES OF ANY KIND, ANY LOSS OR DAMAGE TO PROPERTY OR ANY PERSONAL INJURY, NO MATTER THE EFFECTS ON THE PARTY OR ITS REPRESENTATIVES AND NO MATTER THE THEORY OF LIABILITY.

(iv)            Limits.  A Party’s aggregate indemnification obligations (as specified in Section 5(c)(i)) and a Party’s maximum liability to the other Party for any and all Losses or Claims arising from or in connection with, or relating to, these T&Cs or any Services or Additional Services shall not exceed the amount of fees paid by Customer to Ford Pro under these T&Cs during the one (1)-year period prior to the event giving rise to such Loss or Claim.  These limitations shall survive and apply to these T&Cs notwithstanding the failure of the essential purpose of any specified remedies.  The limitations specified in these T&Cs may not be compounded with, and will not be deemed to be expanded by, the limitations that may be set forth in any other agreement entered into by the Parties, including the Data Services T&Cs, any agreement relating to Customer’s purchase or use of any Connected Vehicle, Hardware or any related software (each, as applicable, a “Fleet-Related Agreement”).  Customer shall not be permitted to recover for any single Loss or Claim under, and no Loss or Claim will be deemed to arise under, more than one of (A) these T&Cs, (B) the Data Services T&Cs or (C) any Fleet-Related Agreement.  THE EXPRESS REMEDIES SET FORTH IN THIS SECTION 5 CONSTITUTE CUSTOMER’S EXCLUSIVE REMEDIES AND FORD PRO’S SOLE OBLIGATION AND LIABILITY WITH RESPECT TO THESE T&CS.  NOTWITHSTANDING ANYTHING IN THESE T&CS TO THE CONTRARY, THESE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO CUSTOMER’S (i) BREACH OF APPLICABLE CONFIDENTIALITY OBLIGATIONS OR APPLICABLE DATA PRIVACY AND PROTECTION OBLIGATIONS, (ii) BREACH OF AN INDEMNIFICATION OBLIGATION OR (iii) ANY CLAIMS OR LOSSES ARISING FROM, RELATING TO OR IN CONNECTION WITH ITS BAD FAITH, FRAUD, GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR VIOLATION OF APPLICABLE LAW.

6.               PARTY OBLIGATIONS AND AGREEMENT.

(a)             Ford Pro’s Obligations.  Ford Pro shall be principally responsible for: (i) operating, maintaining, administering and supporting the Services, including the TMC and related infrastructure; and (ii) protecting the confidentiality and security of PII under its exclusive control and obtained under these T&Cs, in each case in accordance with these T&Cs and Applicable Law.

(b)             Customer’s Obligations.  Customer shall be solely responsible for: (i) maintaining Customer’s Information, including by updating its Fleet Account within five (5) business days of any change in ownership of any Connected Vehicle; (ii) obtaining all necessary Consents from Operators utilizing Connected Vehicles as specified in these T&Cs (including all Consents necessary to provide PII, to the extent any Data or Transformed Data contains PII, to Ford Pro), and (iii) using the Services and all applicable Additional Services in compliance with these T&Cs, Applicable Law and all applicable Services Agreements, including by protecting access to its Fleet Account and any Transformed Data.  Customer will notify Ford Pro immediately of any unauthorized use of its Fleet Account.

(c)             Additional Obligations of Company & Operators.  Except as expressly authorized under these T&Cs or required by Applicable Law, Customer will not, and will take reasonable commercial measures to ensure its Operators do not: (i) Transfer or Alter the Services or, as applicable, any Additional Service, or disobey any policies relating to the Services or, as applicable, any Additional Service; (ii) attempt to gain unauthorized access to the Services or, as applicable, any Additional Service by or through any technology or means other than those provided or expressly authorized by Ford Pro; (iii) reverse engineer, decompile or otherwise attempt to extract the source code of or embedded within the Services or, as applicable, any Additional Service; (iv) develop, advance or create derivative works from the Services or, as applicable, any Additional Service, including derivate works that employ any Transformed Data; (v) copy, frame or mirror any part of or all of the Services or, as applicable, any Additional Service; (vi) access the Services or, as applicable, any Additional Service for any competitive purpose or for any improper purpose whatsoever, including in order to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel” of the Services or, as applicable, any Additional Service; (vii) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the Services or, as applicable, any Additional Service for any unauthorized purpose; (ix) upload, transmit or introduce any malicious code to the Services or, as applicable, any Additional Service; (x) use the Services or, as applicable, any Additional Service, or facilitate use of the Services or, as applicable, any Additional Service, by a Person barred from doing so under Applicable Law; and (xi) use the Services or, as applicable, any Additional Service to upload, pose, display, transmit or otherwise make available (A) any inappropriate, defamatory, obscene or unlawful content; (B) any content that infringes any Intellectual Property right of any Person; or (C) any messages, communications or other content that constitutes disruptive commercial messages or advertisements.

(d)             Operator Consents.  It is the sole responsibility of Customer to (i) notify any Operator that Data and PII may be collected in connection with use of the Services and Additional Services, as well as the type and nature of that Data and PII, and (ii) obtain all necessary consents for Ford Pro’s collection and use, as described in these T&Cs, of such Data and PII as required by Applicable Law and these T&Cs (collectively, “Consents”).  Certain Services or Additional Services may require Customer to collect additional Consents from their Operators (e.g., for monitoring license certifications), and Customer will obtain such additional Consents prior to accessing any such affected Services or Additional Services.  Customer shall indemnify Ford Pro pursuant to the provisions of Section 5(c) and will hold harmless Ford Pro for any failure by Customer to obtain such necessary Consents.  Customer shall provide, upon Ford Pro’s request, documentation and artifacts, as well as take any other steps as may be required by Applicable Law, to support verification of Customer’s compliance with these T&Cs, including verification of all Consents required to be obtained hereunder.  Customer shall maintain such documentation throughout the Term of, and for a period of at least two (2) years following the termination of, these T&Cs, and agrees to provide Ford Pro access to inspect and make copies of such materials upon request.

(e)             Permitted Use.  Subject to Section 1, Customer may Use the Services and, as applicable, Additional Services only (i) for Customer’s internal business purposes related to Connected Vehicle fleet management, testing and evaluation, including via subcontractors (subject to Section 6(f)(iv)), and (ii) in services or products offered by Customer to its customers that contain services or data in addition to Transformed Data (a “Customer Product”), provided, in all cases, that such Use is in compliance with these T&Cs and all Applicable Law, including, in each case, as relates to confidentiality and data privacy and protection.  Except as permitted by this Section 6(e), Customer may not transfer or sell any Transformed Data to any third party other than to a customer as part of a Customer Product.  Except as expressly provided herein as part of a Customer Product (and subject to Customer first obtaining all requisite Consents), Customer may not engage in the onward sale of any PII (including any vehicle identification numbers) that Ford Pro has provided to Customer under these T&Cs, without the express written consent of Ford Pro.  Customer acknowledges and agrees that further anonymization of Transformed Data does not relieve Customer of any obligations under these T&Cs.  Promptly after receipt of Notice from Ford Pro instructing Customer to do so, Customer shall delete all Transformed Data indicated in the Notice and cease all transfer, disclosure or other sharing of such Transformed Data.  Customer further acknowledges and agrees that any losses incurred by Ford Pro (or, for the avoidance of doubt, any of its Affiliates) arising from, relating to or in connection with any non-permitted use of the Services or, as applicable, any Additional Service will be considered direct Losses incurred by Ford Pro for purposes of these T&Cs.

(f)              Information Security.  At all times throughout the Term, each Party shall: (i) maintain its respective systems in accordance with industry security standards; (ii) encrypt API parameters in transit (input and response) and encrypt all Transformed Data at rest; (iii) cooperate with the other Party to verify and test (including through penetration testing) the end-to-end security controls of their respective systems as applied to the Services; (iv) engage subcontractors under terms no less stringent as those set forth in these T&Cs, and, as applicable, the Data Services T&Cs or any Fleet-Related Agreement, and be responsible at all times for the actions of such subcontractors; (v) monitor for, and appropriately protect against, security incidents; (vi) provide timely notification to the other Party of any security incident to enable appropriate and required remediation to be taken; (vii) treat security related information as Information subject to Section 9(a); and (viii) maintain adequate security controls around credentials to prevent unauthorized use or access of the Services and, as applicable, to prevent the linking of any Transformed Data with any other data to identify a Person, Household or a static/persistent ID.  Upon Ford Pro’s request, Customer shall provide documentation to Ford Pro that demonstrates end-to-end security control systems have been implemented, including any such additional security requirements as may be required by Applicable Law (e.g., PCI DSS, GDPR, in-vehicle cyber security requirements, etc.).

7.               INTELLECTUAL PROPERTY; DATA.

(a)             Ford Pro retains, and is or will be the sole and exclusive owner of, all right, title, and interest in and to all Intellectual Property (including all Intellectual Property contained in the Services and, as applicable, the Additional Services), Data and Transformed Data (other than certain Information and PII as set forth below) used in connection with or related in any way to the Services or, as applicable, the Additional Services.  Certain portions of the Services and, as applicable, the Additional Services may be provided under Intellectual Property licenses from third parties and are subject to copyright or other Intellectual Property rights of such third parties.  Customer may be held liable for any unauthorized copying or disclosure of such third party-supplied materials.  Ford Pro may collect certain Data from Connected Vehicles that have been enrolled in Customer’s Fleet Account pursuant to these T&Cs, for which Ford Pro is the sole and exclusive owner, and Customer expressly consents to Ford Pro’s collecting, Processing, disclosing and commercializing (including by and through Representatives of Ford Pro) of such Data (other than certain Information and PII as set forth below) for Ford Pro’s Business.  Data will be processed and stored in the United States of America.  Customer further acknowledges that certain Data may contain PII, including PII gathered from the operation of Connected Vehicles (including GPS and other connected interfaces).  To the extent any Data or Transformed Data contains PII that is traceable to Customer or its Operators, Ford Pro shall abide by Applicable Law governing protection thereof.  Ford Pro will be under no obligation to provide Transformed Data to Customer if prohibited by Applicable Law.  All ownership, right, title and interest in and to all Information regarding a Party and its Affiliates shall be the sole and exclusive property of the Party providing or disclosing such Information or, if such Party is not the owner thereof, the Person that owns such Information.  Ford Pro may also create a de-identified set of the Data (which does not contain any PII or Information that could be used to determine that such Data is related to Customer or its Operators) and use such Data for Ford Pro’s commercial purposes, and Customer consents to Ford Pro’s collection processing and retention of de-identified Data for Ford Pro’s Business.

(b)             To the extent Ford Pro provides any Transformed Data to Customer, Customer agrees that the Transformed Data is provided for planning purposes only, and that various conditions in which Connected Vehicles operate and in which the Services and, as applicable, any Additional Service are utilized may limit the availability of, or impact the accuracy of, such Transformed Data, or differ from what is provided or expected from such Transformed Data.  Factors that may impact the availability and accuracy of Transformed Data include availability and strength of cellular coverage, wireless carrier outages and network interruptions, modem tampering or deactivation and material failures of Data supplying components in Connected Vehicles.  Ford Pro shall be under no obligation to cause modems to be (or to remain) activated by Operators after an Operator receives a Connected Vehicle.  If Customer elects to use third party hardware that has not been provided or approved by Ford Pro, additional terms and conditions may apply and such use may affect the availability of the Services or the applicable Additional Service, and Ford Pro is not responsible for any impact of using such third-party hardware.  Customer shall exercise reasonable judgment in Customer’s use of any Transformed Data.

(c)             Solely to carry out their respective obligations under these T&Cs, each Party hereby grants to the other Party a non-exclusive, non-transferable (except pursuant to a permitted assignment of these T&Cs), revocable, limited license (without the right to sublicense) to use certain of such Party’s Product Marks as agreed in writing from time to time solely in connection with promotion, marketing, advertising and sale of the Services during the Term as permitted by these T&Cs.  Customer may request Ford Pro’s permission to use a Ford Pro Product Mark pursuant to this Section 6(e) at https://www.fordbrandlicensing.com/..  Ford Pro may, in its sole discretion, refuse approval of any proposed use of its Product Marks for any reason or no reason, and any approved use of any Ford Pro Product Mark shall be in strict compliance with the terms and conditions of such approval.  Notwithstanding any license granted herein, each Party shall retain all right, title and interest in and to its respective Product Marks, and each Party undertakes not to challenge the validity of the other Party’s Product Marks, or the registration or ownership thereof, and agrees that it will do nothing inconsistent with such ownership.  Each Party agrees that all use of the other Party’s Product Marks and all goodwill generated thereby shall inure to the benefit of, and be on behalf of, the owner of such Product Mark.  Each Party shall promptly cease all use of the other Party’s Product Marks upon termination of these T&Cs.

8.               U.S. OFFICIAL ENTITY RIGHTS.  This Section 8 shall only apply to U.S. Official Entities.  

(a)             The Fleet Account, any Services and, as applicable, Additional Services and any derivatives thereof are “commercial products” and “commercial services” as defined in 48 C.F.R. § 2.101.  The use, duplication, reproduction, release, modification, display, disclosure or transfer of the Fleet Account or any Services (including, in each case, any related software) and any associated documentation and technical data by a U.S. Official Entity is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2 and 48 C.F.R.§ 227.7202, as applicable.

(b)             Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R.§ 227.7102-3 and 48 C.F.R. § 227.7202-1 through 48 C.F.R. § 227.7202-3, as applicable, the Fleet Account, Services and, as applicable, Additional Services are provided to U.S. Official Entities: (i) only as “commercial products” and “commercial services” as defined in 48 C.F.R. § 2.101, (ii) with only those rights as are customarily granted to all other users pursuant to Ford Pro’s standard terms of use, and (iii) this clause is incorporated into any reseller’s, prime contractor’s or subcontractor’s contract with the U.S. Official Entity or otherwise agreed to by the U.S. Official Entity in a way that legally binds such U.S. Official Entity to this clause.  This U.S. Official Entity rights clause is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), Defense FAR Supplements (“DFARS”) or other U.S. Official Entity-specific clause or provision that addressed U.S. Official Entity rights in commercial computer software, commercial computer software documents or commercial technical data.

(c)             Solely to the extent that Customer, as a U.S. Official Entity, is not permitted by Applicable Law to agree to the indemnification obligations set forth in Section 5(c), then the terms of Section 5(c) shall be modified to the minimum extent necessary for such provision to be enforceable, and the remainder of such provision shall continue in full force and effect without modification.

(d)             Solely to the extent that the Customer, as a U.S. Official Entity, is not permitted by Applicable Law to agree to the arbitration obligations set forth in Section 9(k), Section 9(k) shall be deemed to be deleted in its entirety from these T&Cs and shall be replaced with 41 U.S.C. Chapter 71 “Contract Disputes”.

9.               MISCELLANEOUS.

(a)             Confidentiality.  The Information regarding a Party and its Affiliates (collectively, the “Disclosing Party”) that the other Party (the “Receiving Party”) receives or obtains access to in the course of the relationship established by these T&Cs constitutes confidential and proprietary information, the disclosure, copying, or distribution of which could result in competitive harm to the Disclosing Party.  Ford Pro and Customer will each use reasonable care to maintain the other Party’s Information in the strictest confidence and not to disclose, copy, or distribute the other Party’s Information, whether orally or in writing, directly or indirectly, in whole or in part, except (i) to those of the Receiving Party’s Representatives who need to have the Information in order to perform their obligations under these T&Cs (and agree in writing to be bound by confidentiality provisions comparable to those specified in this Section 9(a)) and (ii) as otherwise permitted by these T&Cs (including as specified in Section 7).  Reasonable care in this respect is the standard of care that the Receiving Party would use in protecting the confidentiality of its own Information.  The confidentiality obligations specified in this Section 9(a) will continue in effect for the Term of these T&Cs and for a period of four (4) years after the date on which these T&Cs expire or are earlier terminated by the Parties.  Notwithstanding the foregoing, nothing in this Section 9(a) will apply to any information (including Information) (A) which is or becomes generally available to the public other than as a result of disclosure by a Receiving Party or its Representatives in violation of any confidentiality obligations existing between the Parties; (B) which was available on a non-confidential basis prior to its disclosure by the Disclosing Party or its Representatives; (C) which becomes available to a Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such source is not known, after reasonable inquiry, to be subject to any prohibition against transmitting the Information; or (D) which is disclosed pursuant to Applicable Law, provided that the Receiving Party will, to the extent permitted by Applicable Law, give the Disclosing Party prompt Notice of such threatened disclosure and the right to defend against such disclosure, at the Disclosing Party’s expense, and provided further that the Receiving Party will cooperate reasonably in such defense.

(b)             Privacy; PII.  Ford Pro may collect PII that includes contact information from Customer in connection with these T&Cs and the provision of the Services and, as applicable, Additional Services.  Customer, for itself and on behalf of its Affiliates, agrees and consents to Ford Pro’s use of such contact information to send marketing, advertising and promotional communications to Customer concerning Ford Pro’s and its business partners’ products and services that Ford Pro believes may be of interest to the Customer or its Affiliates.  Customer is subject to the Ford Pro Privacy Policy, as such policy may be amended from time to time, which such policy is available at www.fordpro.com/en-us/privacy (the “Privacy Policy”).  For more information on how Ford Pro handles PII and other identifiable information, please see the Privacy Policy, which contains information on how a recipient of our marketing communications may opt-out from such communications or withdraw this consent.

(c)             Cellular Carriers.  In order to deliver the Services and certain of the Additional Services, including, in each case, as such Services or Additional Services are linked to Connected Vehicles, Ford Pro has entered into or may enter into agreements with one or more Underlying Carriers, for which Customer is not a third party beneficiary.  Customer agrees that Ford Pro cannot guarantee the security of wireless transmissions or the TMC, and Ford Pro is not and will not be liable to Customer for any lack of security relating to the use of an Underlying Carrier with respect to any part of the Services or, as applicable, Additional Services.  To the extent Customer has entered into or may enter into agreements with one or more wireless service carriers, developers of the operating systems for any of Customer’s devices or the operator of any application store, marketplace or similar service through which Customer obtains access to the Services or, as applicable, Additional Services (as applicable, “Customer’s Carriers”), Customer and Ford Pro acknowledge that Customer’s Carriers are not third party beneficiaries of these T&Cs.  Ford Pro will not in any way be bound by the terms and conditions of any agreement between Customer and any of Customer’s Carriers, and Customer will be solely responsible with complying with the terms and conditions thereof.

(d)             Interaction with Other Agreements.  In the event of a conflict between any one or more terms or conditions of these T&Cs and any one or more terms and conditions of any Service Agreement or the Data Services T&Cs, these T&Cs will control.  These T&Cs and Customer’s use of the Services and the Additional Services are subject to (i) the Fleetio (Rarestep, Inc.) Terms of Service, available at https://www.fleetio.com/terms, and the Fleetio (Rarestep, Inc.) Privacy Policy, available at https://www.fleetio.com/privacy, (ii) the SambaSafety (Safety Holdings, Inc.) Driver Record Monitoring Service Addendum, available at https://content.fordpro.com/content/dam/fordpro/us/en-us/pdf/subscriptions/SambaTermsandConditions.pdf, and (iii) if Customer is enrolled in any Additional Service provided by Lytx, Inc. involving its dash camera device, the Lytx (Lytx, Inc.) Terms and Conditions, available at https://fleetaccount.ford.com/account-static/FordProLytx/FordPro_Lytx_TC_en-US.pdf, in each case, as may be amended from time to time.

(e)             Modification.  Except as permitted by this Section 9(e), no release, discharge, waiver or modification of any of the provisions of these T&Cs shall be binding upon a Party, nor will any statement, whether oral or in writing, by or on behalf of either Party serve as the basis of any representation or warranty of such Party, nor shall such statement be deemed to be a part of these T&Cs or any Sales Order, unless expressly so specified in writing by both Parties.  Notwithstanding the foregoing, Ford Pro may modify these T&Cs at any time as follows: (i) Ford Pro will alert Customer through its Fleet Account of any material changes to these T&Cs at least thirty (30) days prior to any such change becoming effective, and (ii) all other modifications will be effective immediately upon being posted to Customer’s Fleet Account, or at such later time as Ford Pro may specify in its sole discretion.  In each case, Customer’s continued use of the Services or, as applicable, Additional Services shall serve as Customer’s acceptance of such modified terms.  If Customer does not agree to these T&Cs or any modification hereof that is made by Ford Pro in accordance with this Section 9(e), Customer must immediately stop using the Services and all applicable Additional Services and cancel its Fleet Account.

(f)              Force Majeure.  A Party’s obligations under these T&Cs will be temporarily suspended during any period that the Party is unable to carry out such obligations under these T&Cs by reason of a Force Majeure Event, with any delayed performance of then-pending obligations under these T&Cs excused for so long as the Force Majeure Event continues.  An impacted Party shall provide prompt Notice to the other Party, specifying the period that the Force Majeure Event is expected to continue.  An impacted Party shall take reasonable commercial measures to mitigate the impacts of a Force Majeure Event, resuming performance of its obligations as soon as reasonably practicable after the removal of the cause thereof.  If the impacted Party’s delayed performance continues for a period of ninety (90) consecutive days, either Party may terminate these T&Cs upon thirty (30) days’ advance Notice.

(g)             Governing Law/Invalidity.  These T&Cs shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware without regard to rules of conflict of laws, unless Ford Canada is deemed to be the contracting Party, in which case, these T&Cs shall be governed by, and enforced in accordance with, the laws of the Province of Ontario.  Notwithstanding the foregoing, if Customer is a U.S. Official Entity and receives Notices in its home state within the U.S., these T&Cs shall be construed and enforced in accordance with, and governed by, the laws of that home state, without regard to rules of conflict of laws.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these T&Cs.  If any provision of these T&Cs is declared unlawful or unenforceable by judicial determination or performance, these T&Cs may be modified to the minimum extent necessary for such provision to be enforceable, and the remainder of these T&Cs shall continue in force as if the invalidated provision did not exist.

(h)             Language.  The Parties have requested that these T&Cs, and all Notices and documentation relating to these T&Cs, be written in the English language. Les parties aux présentes ont exigé que la présentes entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglais.

(i)              No Agency/Partnership; Non-Exclusivity.  These T&Cs do not create, and shall not be construed as creating, any agency, partnership, joint venture or other employment relationship.  Customer shall not hold itself out as an agent or representative of Ford Pro.  Neither Party shall have any right, power, or authority to assume, create, or incur any expense, liability or obligation, express or implied, on behalf of the other Party, except as expressly provided herein.  Nothing in these T&Cs will be deemed to create an exclusive relationship that would restrict the present or future business activities of either Party, including either Party’s provision to any third party or procurement from any third party of any services similar or identical to any of the Services.

(j)              Assignment.  Neither Party may assign, delegate or transfer these T&Cs, or any of its rights, duties or obligations hereunder, whether voluntarily, by merger or operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed), except that Ford Pro may assign these T&Cs, or any portion hereof, to any of its Affiliates and may delegate any of its duties and obligations hereunder to any Affiliate or Representative, without obtaining Customer’s prior written consent.  No permitted assignment shall relieve a Party of its rights and obligations under these T&Cs prior to the effective date of such assignment, and any unpermitted assignment shall be null and void.  These T&Cs will inure to the benefit of any respective successor or permitted assign of a Party.

(k)             Arbitration.  Disputes between the Parties arising out of or in connection with these T&Cs, upon Notice, shall be submitted to and finally settled by a single commercial arbitrator with substantial experience in the industry and in resolving complex commercial contract disputes.  Arbitration shall be conducted in the State of Michigan, the State of Delaware or the State of New York, as determined by the Party initiating the dispute, in accordance with the then-applicable International Institute for Conflict Prevention and Resolution Rules for Administered Arbitration and the Michigan Uniform Arbitration Act, as amended M.C.L.A. § 691.1681 et seq. (which shall control in the case of conflict).  Notwithstanding the foregoing, the arbitrator shall have the power to rule on objections concerning jurisdiction, including the existence, validity or scope of this arbitration provision, these T&Cs and issues of arbitrability, but shall have no authority to appoint or retain expert witnesses for any purpose, unless agreed to by the Parties.  The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and judgment upon the arbitration award may be entered by any court having jurisdiction over a Party.  A Party also may apply to any such court, without waiving arbitration rights, for equitable relief or interim measures.

(l)              Survival.  Upon termination or expiration of these T&Cs, the Parties’ rights and obligations under Section 3, Section 4(c), Section 5, Section 7 and Section 9 will survive.

(m)            Entire Agreement; Interpretation; Execution and Counterparts.  These T&Cs constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior oral or written representations and agreements with regard to the same.  Any other terms or conditions of purchase, sale or otherwise that are not specifically set forth in these T&Cs shall be binding only with the specific written consent of Ford Pro.  Ford Pro’s specific written consent in this respect shall mean a written agreement signed by a duly authorized Representative of Ford Pro.  Any terms and conditions proposed by Customer, including any preprinted, linked, referenced or customized terms and conditions on or with Customer’s order, including in any purchase order submitted by Customer, are hereby expressly rejected and will not form or be deemed to form any part of these T&Cs or any Sales Order.  Customer hereby agrees that any purchase order submitted to Ford Pro by or on behalf of Customer may be used, solely as a courtesy to Customer, for order processing and invoicing purposes only, but in no event will any such purchase order, or any terms or conditions set forth therein, supersede, amend, supplant or otherwise modify in any way these T&Cs or any Sales Order, which represent and constitute the sole and entire agreement between the Parties with respect to the subject matter hereof.  These T&Cs confer no rights upon any third party, including any Representative of either Party or other Operator, except as expressly provided herein.  Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “herein,” “hereto,” “hereof” and words of similar import refer to these T&Cs as a whole and not to any particular section hereof; (ii) the word “including” and words of similar import mean “including without limitation” or “including, but not limited to;” (iii) any pronoun includes the corresponding masculine, feminine and neuter forms; (iv) words in the singular or the plural include the plural or the singular, as the case may be; and (v) headings are for convenience only and shall not affect interpretation.  The Sales Order may be executed by electronic means, including by Customer clicking the “Accept” button on the digital version of the Sales Order, or by executing one or more counterparts of the applicable Sales Order, each of which will be deemed an original version of the Sales Order.  In such case, for purposes of the Sales Order, a facsimile, scanned, or electronic signature will be deemed an original signature.

(n)             Definitions.  Unless otherwise defined in these T&Cs, the following terms will have the meanings provided in this Section 9(n):

Affiliate” of a Person shall mean an entity that directly, or indirectly through one or more intermediate entities, has at least fifty percent (50%) ownership of or is at least fifty percent (50%) owned by, or Controls or is Controlled by, that Person or is under common Control with that Person.  For purposes of the foregoing, “Control” of a Person shall mean that an entity or group of Affiliate entities, directly or indirectly, owns or controls at least 25% of the voting stock, partnership interest or other ownership interest of that Person, whether through the ownership of voting securities or by contract or otherwise. 

Alter” means to change, interfere with or otherwise disrupt the normal and intended operation of any system, component or interface.

APIs” means hosted application program interfaces.

Applicable Law” means any and all conventions, treaties, statutes, regulations and rules, as well as the judicial or administrative judgments, decisions, decrees, orders, injunctions or directives, demands, tariffs, embargoes, levies or comparable obligations of any Governmental Authority, which are in force or enacted on or after the Effective Date and are, in each case, legally binding as at the relevant time, whether civil, criminal or administrative.

Change of Control” includes, with respect to Customer, the prospective: (i) sale, lease or exchange of a substantial portion of Customer’s assets; (ii) sale or exchange of a controlling interest in the shares of Customer; or (iii) execution of a voting or other agreement of Control; provided, that Customer shall provide Ford Pro with Notice of a prospective Change of Control no fewer than ten (10) days prior to the date that the Change of Control will become effective, and Ford Pro will have thirty (30) days from the date on which the Notice from Customer is given within which to notify Customer of its decision to terminate these T&Cs and terminate provision of all Services and, as applicable, Additional Services hereunder, as well as the effective date of such termination, which will be no sooner than ten (10) days after the date on which such Notice of termination is given.

Claim” means a claim, allegation, action, cause of action, proceeding, demand, assertion, adjudication or suit made against or brought by a Person.

Connected Vehicle” means a vehicle capable of transmitting Data either through an embedded Telematics Control Unit (TCU) on a Ford Pro- or Lincoln-branded vehicle or a vehicle that has been upfitted with an approved plug-in modem kit.

Customer” means the Person identified in the Sales Order as purchasing a license for Use of the Services and, as applicable, Additional Services.

Cured” means to correct or remedy a breach, provided that any Cure shall be completed in no more than thirty (30) days, except a non-payment breach which shall be paid in five (5) business days, or each otherwise shall be deemed uncured.

Data” means data, recorded information or content, regardless of form or medium, that is derived from, generated by, captured in, transmitted through or streamed via Connected Vehicles and Hardware, and any transformation of the foregoing, including as provided for in any applicable Service Agreement.

Data Services” means those certain services that the Customer may purchase from Ford Pro that are subject to the Ford Pro Data Services Terms and Conditions (the “Data Services T&Cs”), including with respect to access to and use of APIs and Transformed Vehicle Data.  Data Services will not include any of the Services or Additional Services.

Dispute” means any disagreement over a Sales Order, an invoice or these T&Cs, provided that any invoice Dispute shall require Customer to pay all undisputed amounts and detail, in writing, to Ford Pro the basis for such Dispute in the timeframe provided in these T&Cs.

Fleet Account” means an account on the FFM accessed at fleetaccount.ford.com through which Customer (or its customers) enrolls eligible Connected Vehicles and activates the Services. 

Force Majeure Event” means: acts of God or the public enemy; natural catastrophes; acts of terrorism; fires or floods; strikes, lockouts or other industrial or labor disorders; civil commotion; unavailability of or restrictions on transportation; the actions or inactions by any Governmental Authority; pandemic or epidemic; inability to procure materials, labor or energy; industrial disturbances; or any other event, occurrence or circumstance beyond the reasonable control of the impacted Party.  The term “Force Majeure Event” shall not include obligations regarding the payment of money.

Ford Pro” means Ford Motor Company, a Delaware corporation, with or by its designated Affiliates, including, to the extent the Services or, as applicable, any Additional Service are provided in Canada, Ford Motor Company of Canada Limited, an Ontario corporation (“Ford Canada”).  For the avoidance of doubt, any reference in these T&Cs to Ford Pro may mean the Ford Pro-designated Affiliate or Representative engaged to provide the Services or, as applicable, any Additional Service.

Ford Pro’s Business” means Ford Pro’s and its Affiliates’ commercial purposes, including research, development and provision of existing or new products and services (including the Services, Additional Services and EVs), enhancement and optimization of products and services (including the Services, Additional Services and EVs), accident research or investigations, warranty and contract compliance, maintenance or diagnostics and conducting research or analyses of Data.

Governmental Authority” means any domestic or foreign government and its divisions (whether national, federal, state, provincial, local, tribal or otherwise), court of competent jurisdiction, administrative agency, arbitrator, arbitral tribunal, arbitral body, commission or other regulatory authority or quasi-regulatory authority acting under Applicable Law.

Hardware” means any additional equipment that may be required to be installed separately to enable the Services or, as applicable, Additional Services (e.g., a plug-in device or charging wall box).

Home Charging” means the ability for a driver of an all or partially electric Connected Vehicle to charge such Connected Vehicle at the driver’s home or other residence.  Home Charging may require installation of Hardware that may be subject to a separate Service Agreement.

Household” means a group, however identified, of natural persons who cohabitate with one another at the same residential address and may share use of Connected Vehicles, Hardware or other services.

Information” means the nature and details of the business relationship established by these T&Cs, and the business and other information regarding a Party and its Affiliates.

Insolvency” means, with respect to a Party, that such Party: (i) files a petition in bankruptcy, (ii) is adjudicated as bankrupt, (iii) makes a general assignment for the benefit of creditors, (iv) is subject to a receiver’s, a liquidator’s or an administrator’s appointment, or (v) any equivalent procedure to any of those listed in the preceding clauses; provided, that “Party” in this definition also refers to any direct Affiliate with Control over the Party.

Intellectual Property” means all intellectual property and other similar proprietary rights in any jurisdiction worldwide, whether owned or held for use under license, whether registered or unregistered, including such rights in and to: (i) trademarks (including common law and registered trademarks), trade dress, service marks, certification marks, logos, slogans, trade names, brand names, corporate names, assumed names, business names and all other indicia of origin, including all registrations and applications of the foregoing and the goodwill associated with any of the foregoing (collectively, “Product Marks”); (ii) works of authorship and all other copyrightable works, including all copyrights, database rights, domain names and all registrations, applications and extensions of the foregoing, which may include components of the Services; (iii) trade secrets, invention disclosures, techniques, business and technical information, know-how and information; and (iv) inventions, ideas, discoveries, designs, drawings, developments, whether or not any of the foregoing are patentable, and any issued patents and pending patent applications, including any divisionals, continuations, continuations-in-part, reissues, continuing patent applications, reexaminations and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration and like rights.

Loss” means, in relation to any Person, a damage, loss, cost, expense or liability incurred by the Person (including reasonable attorneys’ fees), however arising and whether present or future, fixed or unascertained, actual or contingent.

Notice” means any notice, claim, certificate, request, demand or other communication required or permitted under these T&Cs.  Where no timeframe or specification for Notice is made, Notice is to be thirty (30) days prior written, detailed Notice.  Except where Notice by email is permitted by these T&Cs, Notice will be deemed given when sent by (i) registered mail, return receipt requested, or (ii) a nationally recognized overnight delivery service (such as Federal Express), to the address listed in the Sales Order for the recipient Party, with a copy sent to each of the General Counsel and Corporate Secretary of the recipient Party at the same address (or such other address or designee as provided by Notice to the other Party).

Operators” means all end users of Connected Vehicles under these T&Cs, including Customer’s Representatives and customers.

Person” means an individual, corporation, partnership, firm, limited liability Customer, joint venture, trust, unincorporated organization, Governmental Authority, association, or any other legal entity.

PII” means any Data or Information that when used separately or in combination with other information could identify an individual, is reasonably linked to an individual or is related to or about an identified or identifiable natural person who can be identified, located or contacted, directly or indirectly from the Data or Information that is provided to or obtained by Parties pursuant to these T&Cs.

Process” means to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy.  “Processing” and “Processed” have correlative meanings.

Public Charging” means the Service that permits Customer and its Operators to access the Ford Pro network of public charging stations to charge eligible all or partially electric Connected Vehicles.  Public Charging may be subject to a separate Service Agreement.

Representative” means a Person authorized by any contract, lease, license, indenture, agreement, commitment or other legally binding arrangement or under Applicable Law to act for or on behalf of another Person, including such Person’s Affiliates, directors, officers, employees, agents, subcontractors, outsourcers and suppliers.

Sales Order” means the Ford Pro sales order executed by Customer (as provided in Section 9(m)) and accepted by Ford Pro for Ford Pro’s provision of certain of the Services and, as applicable, Additional Services to Customer.

Service Agreement” means an agreement entered into by Customer, on the one hand, and Ford Pro on the other hand, that relates to the Services or the Additional Services.

Services” means the services provided to Customer as set forth in these T&Cs, as amended from time to time, including access to and use of associated APIs, systems, networks, other Data transfer mechanisms and Transformed Data.  For the avoidance of doubt, the Services exclude the Data Services and the Additional Services.

Taxes” means any tax, imposition, exaction, duty, charge or its equivalent under Applicable Law, including sales taxes, use taxes, goods and services taxes, value-added and excise taxes, income taxes, franchise taxes, gross receipts taxes, and property taxes.

Territory” means the United States of America or, if Ford Canada is deemed to be the contracting Party, Canada.

TMC” means the transportation mobility cloud or comparable system that supports Customer’s access to Services and certain Additional Services.  The TMC holds certain Transformed Data and Information, including Data aggregated, anonymized, Processed or otherwise analyzed by Ford Pro from Customer and its Connected Vehicles.

Transfer” means to provide, disclose, distribute, sell, resell, license, rent, lease or otherwise provide to a third party.

Transformed Data” means the set of Data that has been transformed to provide the Services.

Underlying Carrier” means any wireless service carrier utilized by Ford Pro to support the Services, certain Additional Services and related infrastructure, including the TMC.

Use” means the limited manner in which Customer is permitted to access and use the Services and, as applicable, certain Additional Services under these T&Cs, as further specified in Section 6(d).

U.S. Official Entity” means a United States of America Governmental Authority.  For purposes of these T&Cs, a U.S. Official Entity may be referred to as Customer if it is the entity identified in the Sales Order as purchasing a license for Use of the Services and, as applicable, Additional Services.

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