General Terms of Service

These General Terms of Service (“General Terms“), together with the Order Form and the referenced Documents listed therein, are collectively referred to as the “Agreement” which governs the terms and conditions under which the Fleetworthy will provide the Services to the customer (“Customer”) identified in the Fleetworthy Order Form. 

1. Fleetworthy Defined.  “Fleetworthy” is the co-brand of Bestpass, Inc. and its wholly owned subsidiary Drivewyze, Inc.  Wherever referenced herein, Fleetworthy references each of the company which is providing and billing for the Services identified in Section 2 below.  

2. Services.  

2.1 Bestpass, Inc. (“Bestpass”) provides certain toll management, violation and citation remediation, and related fleet management services (“Bestpass Service”). 

2.2 Drivewyze, Inc. (“Drivewyze”) provides weigh station bypass and certain alerting services (“Drivewyze Service”).       

2.3 Customer Obligations.  Customer agrees Fleetworthy shall be under no obligation to provide any Services unless and until Customer’s Fleetworthy Account has been funded fully to the predetermined amount and Customer has provided all information related to its method of payment, fleet vehicles and related equipment necessary for the provision of the Services.  Customer acknowledges that delayed provision of correct payment and fleet information, or a failure to maintain correct payment or fleet information, may result in discontinuation of the Services as well as additional costs, violations, penalties or fines to Customer issued by governing authorities. 

2.4 Customer Communication. Fleetworthy may contact Customer by utilizing the phone numbers, addresses, email addresses or other contact information provided by Customer. Contact may via phone and/or text (SMS) using automated dialing technology for account maintenance or marketing purposes. Message and data rates may apply. 

2.5 Compliance with Terms and Governing Authority. Failure to comply with the terms of the Agreement; any conditions or directives from tolling or municipal authorities, or Customer’s violation of any traffic laws, regulations, signs, signals, or directions of toll collectors and law enforcement officers may result in termination of the Customer’s Account, deactivation of Hardware issued to the Customer; and/or other penalties as may be assessed by the tolling or municipal authorities. 

2.6 Service Pilots.  The Services are not subject to any testing or other trial period (“Pilot”) unless expressly defined in the Agreement.  Any Pilot must be expressly detailed in the Agreement, with mutually agreed deliverables and end date.  For any Customer Account with a Pilot, Customer has the option to terminate its Account within the defined time period if Fleetworthy fails to meet or exceed the agreed upon deliverables on or before the agreed upon deadline.  The claimed failure on the part of Fleetworthy to meet or exceed the agreed upon deliverable must be identified on notice to Fleetworthy within two business days of the end of the Pilot.  If the claimed failure is confirmed by Fleetworthy, the customer has the right to terminate the contract within the time frame identified in the Agreement.  If Customer does decide to terminate, Customer will remain responsible for any toll and fees incurred during through the final termination date.   

2.7 Roll Outs.  Any Service ordered which provides for a delayed delivery, billing or onboarding must be detailed in the Agreement.  Otherwise, all Service ordered will be fulfilled upon order receipt and billing for Services will begin at the next regularly scheduled interval. 

2.8 Leased Vehicles. Services for vehicles or equipment which Customer leases from a third-party may require approval or release of the vehicle before the Service may be implemented. Customer agrees to be responsible for determining if leased vehicles and equipment require approval or release from the leasor and, if so, to obtain any necessary authorization from the leasor.  Fleetworthy will reasonably cooperate and facilitate the exchange of information and transfer of vehicle information. 

2.9 Telematics/Fleet Management Software Integration.  Fleetworthy and Customer will coordinate with Customer’s telematics or fleet management software providers to incorporate data related to Customer’s use of the Services contemplated under this Agreement.  By opting in or otherwise directing Fleetworthy to share Customer information or data with any third-party telematics or fleet management software, Customer is authorizing Fleetworthy to do the same via any integration process or platform agreed upon in coordination with the telematics or fleet management software provider.  

3. Software. Part of the Services provided to Customer pursuant to the Order Form includes access to the Fleetworthy’ software, mobile applications, Application Programming Interface (“API”) or other software services necessary or available for the use of the Services (collectively “Software”).   

3.1 Fleetworthy hereby grants to Customer and End Users, as applicable, a non-transferable and non-exclusive license to use any Software downloaded on Customer or End User devices solely to receive Services in accordance with the Agreement. All rights not expressly granted are hereby reserved by Fleetworthy. Fleetworthy retains all intellectual property rights in and to the Services and Software and retains all rights not expressly granted. To the extent Customer or End Users creates any improvements, Customer hereby assigns and agrees to assign all right, title and interest in such improvements to Fleetworthy, including but not limited to all intellectual property rights in or to such improvements.  

3.2 Fleetworthy will update or conduct periodic maintenance on Software from time to time which may temporarily restrict access or use during that limited time.  Fleetworthy will provide reasonable notice of scheduled maintenance whenever feasible.    

3.3 Customer shall have the sole responsibility of determining and granting access to the Software and the use of the Services by individuals who are authorized by Customer to use or manage the Customer’s Fleetworthy account, Software or Services (“Users”). Customer shall ensure that all User access and use of the Software and Services will be in accordance with the Agreement. Customer is responsible for all use and misuse of the Software and Services by Users as well as for all computer systems and related equipment used by Customer and Users to access the Software and Services.  

3.4 Use Restrictions. Except to the extent the Agreement expressly provides otherwise, Customer shall not, and shall not permit any User or other person to,:  

4. Hardware.  Certain Services require the use of equipment leased by Fleetworthy (“Hardware”) as specifically identified in the Agreement.  Customer agrees only use the Hardware for the vehicles specifically assigned to and registered with Fleetworthy and to maintain up-to-date, accurate and complete vehicle and Hardware lists with Fleetworthy.  Customer is responsible for all costs and fees associated the replacement or repair of Hardware damaged while in the Customer’s possession  

4.1 Discounts.  Unless otherwise agreed upon in the Agreement, Hardware discounts, if any, apply only to initial Hardware orders.  Additional Hardware ordered during the Term will be leased at the then-current Hardware Access Fee. 

4.2 Delivery and Maintenance. Fleetworthy shall use reasonable efforts to deliver Hardware on or about any dates agreed with Customer. Risk of damage to the Hardware will pass to Customer on delivery by Fleetworthy. Upon receipt, Customer shall maintain the Hardware in good working condition.  

4.3 Hardware Warranty. Fleetworthy is not the manufacturer of the Hardware to be utilized for the Service. Hardware distributed by Fleetworthy may be subject to limited manufacturer warranties. To receive a copy of the manufacturer’s warranty applicable to Hardware, contact Fleetworthy Customer Service or the manufacturer directly. If Hardware is damaged through no fault of Customer, it should be returned to Fleetworthy along with a description of the damage. Upon receipt and confirmation of claimed damage, Fleetworthy will contact the manufacturer to assist the Customer in the enforcement of any manufacturer warranty and/or arrange for a replacement to be provided. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESSED OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FLEETWORTHY’S LIABILITY SHALL IN NO EVENT EXCEED THE FEES ACCESS TO THE CUSTOMER FOR THE HARDWARE AND IN NO EVENT SHALL FLEETWORTHY BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES INCLUDING LOSS OF REVENUE, PROFIT, EMPLOYMENT OR OPPORTUNITY. 

5. Fees, Expenses and Taxes.  

5.1 Fees.  For the Services to be performed hereunder, Customer shall pay the fees set out in the Agreement (“Fees”) on or before the due dates indicated. Fees are fixed for the Initial Term. Thereafter, Fleetworthy reserves the right to modify the Fees upon at least thirty (30) days prior written notice to the Customer. 

5.2 Funding and Payments. Customer agrees that, unless its objects or otherwise challenges the accuracy of the statements, replenishment requests or invoices issued by the Fleetworthy are made within a reasonable time after being presented to Customer, the associated statement, replenishment request or invoice shall be considered accepted by Customer and the payment obligations noted therein are promised to be paid by Customer by the date indicated or, if no date is indicated, within a reasonable time thereafter.  Payment obligations are non-cancellable, and Fees paid are non-refundable.  Any Minimum Monthly Service Fee commitment detailed in the Agreement cannot be decreased during the Term.  Customer shall make all replenishments and pay all invoiced amounts to Fleetworthy via the agreed upon payment method set forth in the Agreement. All payments shall be made as outlined in the statement, replenishment request or invoice. Should Customer fail to submit payment to Fleetworthy within such designated period, Fleetworthy reserves the right to retain any savings from discounts and/or rebates which would have been available to Customer for each month, or any portion thereof, payment is late; no longer provide the Services; and/or terminate the Agreement for cause.  

5.3 Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Fleetworthy’s income, revenues, gross receipts, personnel, or real or personal property or other assets.  

5.4 Late Payment Penalties: Late payments shall bear interest at the lesser of the rate of 9% 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 Fleetworthy do not waive by the exercise of any rights hereunder), Fleetworthy shall be entitled to suspend or terminate the provision of any Services and access to any Software if Customer fails to pay amounts when due hereunder and such failure continues following provision of reasonable notice thereof. 

6. Data Access and Use. Each Party shall process data, including confidential information and personal identification information, in accordance with all applicable data protection laws.   

6.1 Fleetworthy routinely collects and retains data regarding Customer’s fleet operation, vehicles and Users, including data recorded in electronic recording devices as required by applicable law. Customer on behalf of itself and its Users authorizes Fleetworthy to collect, use, store, and disclose (including to government agencies as required by applicable law) this data to provide the Services, including but not limited to the Customer and its Users. Customer authorizes and provides a waiver (including on behalf of Users) for third party providers, and for Fleetworthy to provide such information to third party providers to the extent necessary to perform the Services contemplated under this Agreement. In no circumstances will Drivewyze disclose to a third party (other than to government agencies as required by law or as part of Services to Customer) any information that identifies a specific Customer, carrier, fleet, vehicle or User, without the consent of the Customer on behalf of itself and Users, as applicable. 

6.2 Fleetworthy will register Customer and Customer’s Hardware and vehicle information, including license plate numbers, with participating governing authorities and distribute data accordingly. 

6.3 Customer will:  

6.4 ensure that all data that originates from the Customer and that the Customer (i) transmits or otherwise provides to Fleetworthy to be processed or stored by Fleetworthy in connection with the performance of the Services, including all of the corrections and updates to the data and all copies of the data created by Fleetworthy (“Customer Data”) that it shares with Bestpass is lawful, accurate and up-to-date;  

6.5 promptly notify Fleetworthy and/or correct the error in the Software, as soon as practicable, after Customer discovers any error in Customer Data that has been shared with Fleetworthy; and 

6.6 only share Customer Data with Fleetworthy that is necessary for the provision of the Services available under this Agreement. 

6.7 Customer warrants that it has: 

(a) the right to transfer Customer Data to Fleetworthy;  

(b) either: (i) obtained all necessary consents; or (ii) secured another lawful basis to share such Customer Data with Fleetworthy; and  

(c) provided appropriate privacy notices Users to enable it to share such Customer Data with Fleetworthy and for Fleetworthy to process relevant Customer Data for the purposes of the Agreement. 

6.8 Customer shall bring the Bestpass Privacy Policy available at www.bestpass.com/privacy-policy to the attention of its Users.  

6.9 Nothing in the Agreement shall prevent Fleetworthy from processing Customer Data or Users’ data provided for the purpose of the Agreement for internal business analytics purposes, or for the provision of services offered by or to third parties provided that Fleetworthy shall only share such data with third parties in an aggregate and anonymized basis or otherwise in a form that does not enable the third party to identify the Customer or its Users.  

7. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Fleetworthy in the course of performing the Services (collectively, the “Deliverables“), except for any Confidential Information of Customer or customer-provided materials, shall remain and be owned exclusively by Fleetworthy. Fleetworthy hereby grant Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.  Confidential Information of Customer or Customer-provided materials, and any Customer-specific reports utilizing Customer materials prepared using the Service or Software shall remain and be owned exclusively by the Customer.  

8. Confidentiality. From time to time during the Term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within three (3)  days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information“); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 4 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, Fleetworthy, sublicensees, subcontractors, attorneys, accountants, and financial advisors.  Notwithstanding, Customer consents to Fleetworthy providing third parties with limited access to the Customer’s Confidential Information where necessary for the provision of the Services. 

9. Term. This Agreement shall commence as of the Effective Date and shall continue thereafter for the term of the Agreement represented in the Order Form unless sooner terminated as provided herein (the “Initial Term“).  The Initial Term shall then automatically renew for successive terms equal to the Initial Term (each a “Renewal Term”, and collectively, the “Term of the Agreement” or simply “Term”), unless Customer provides Fleetworthy notice of non-renewal at least thirty (30) days prior to the end of the then-current Initial Term or any Renewal Term. Notice on non-renewal must be emailed to cancellations@bestpass.com.  

10. Termination.  

10.1 Joint Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party“), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 7 business days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.  

10.2 Termination by Fleetworthy.  Notwithstanding anything to the contrary in this section, Fleetworthy may terminate this Agreement before the expiration date of the Term of the Agreement on written notice if Customer fails to timely remit payment in full when due.  

10.3 Effect of Termination.  

(a) Upon termination or expiry of the Agreement, (i) Fleetworthy will cease the provision of the Services and access to Software; and (ii) Customer shall promptly return leased Hardware. Termination shall be without prejudice to the accrued rights of the Customer or Fleetworthy. Upon termination, the Customer’s account balance, if any, will be refunded after three (3) successive billing cycles have been completed without the Customer’s account incurring any Fees, or other chargeable activity during those billing periods. All outstanding charges, including any charges incurred while the Customer’s account is closing, will be deducted prior to such a refund.  

(b) Following termination of the Agreement, Bestpass may immediately deactivate Customer’s account and deactivate Customer’s access to the Software.  Customer agrees that Bestpass shall not be liable to Customer nor to any third party for any claimed damages stemming from termination of the Customer’s access to the Software or Services, or for the deletion of Customer Data following termination of the Agreement. 

10.4 Early Termination Fee. Except where Customer terminates the Agreement pursuant to Section 9.1, Customer shall be obligated to pay, as liquidated damages and not as a penalty, an Early Termination Fee in a sum of all aggregated Fees and amounts due for the remainder of the then-current Term of the Agreement.  The Early Termination Fee, together with all outstanding Fees and toll charges owed at termination, shall be paid from funds on deposit in the Customer’s account.  If funds on deposit are insufficient, the balance of all amounts due shall be paid by the Customer within thirty (30) days of the date of termination. 

11. Limited Warranty.  

11.1 Fleetworthy warrants that it shall perform the Services (a) using personnel of commercially reasonable skill, experience, and qualifications; (b) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services; (c) in accordance with written requirements included in the Agreement and (d) in accordance with all applicable laws, regulations, rules, ordinances, guidelines and professional standards, including those pertaining to the confidentiality and the use and disclosure of personally identifiable information (PII) or protected health information (PHI), provided, that Customer remains solely responsible for compliance with laws, ordinances, rules, regulations or orders issued by any public authority as such relate specifically to Customer’s industry or operation of its business or vehicles. 

11.2 FLEETWORTHY (a) MAKES NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  

11.3 Fleetworthy’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected services. If Fleetworthy cannot reperform the services in compliance with the warranty set forth above within a reasonable time (but no more than 60 days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 6. Fleetworthy shall within 120 days after the effective date of such termination, refund to Customer a portion of the fees previously paid by Customer as of the date of termination corresponding to the defective Services. 

12. Limitation of Liability. IN NO EVENT SHALL FLEETWORTHY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT FLEETWORTHY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL FLEETWORTHY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO FLEETWORTHY IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THE PARTIES HAVE ENTERED INTO THE AGREEMENT AND AGREED TO THE TERMS, FEES, AND PERFORMANCE OBLIGATIONS RELYING ON THE ENFORCEABILITY OF THE LIMITATIONS OF LIABILITY. THE LIMITATIONS OF LIABILITY CLAUSE IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND APPLIES EVEN IF A REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 

13. Indemnification.  Customer shall be solely liable for and expressly agrees to defend, indemnify and hold harmless Fleetworthy and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (“Indemnitee”) from and against any and all liability, claims, loss, damage, costs, expenses, including attorneys’ fees and costs, (“Losses”) arising out of any third-party claim to the extent such Losses arise out of Customer’s negligent or wrongful acts or omissions, violation of applicable laws and regulations, failure to comply with the requirements of this Agreement, or any other party’s detrimental reliance upon any Customer provided data or information, or errors or inaccuracies contained therein.   

14. General.  

14.1 Further Assurances.  Each of the parties hereto shall use commercially reasonable efforts to, from time to time at the request, furnish the other party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.  

14.2 Third-Party Contractors.  Fleetworthy may utilize outside contractors, subcontractors, contract consultants, representatives, or agents to perform the Services. Fleetworthy may, from time to time, when necessary, change the method of performance or delivery of the Services identified in Order Form without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates agreed upon. 

14.3 Notice.  All notices and other communications in connection with the Agreement shall be in writing to the relevant address or electronic mail address for the Customer set forth in the Agreement or, in the case of notices sent to Fleetworthy, by email to cancellations@bestpass.com. Notice shall be deemed to have been received by a Party when received in the case of hand delivery or via electronic mail, or five (5) Business Days after mailing by first class mail, postage prepaid.  

14.4 Jurisdiction and Venue.  This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with, the laws of New York, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Albany, New York.  EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE NEW YORK STATE SUPREME COURT FOR THE COUNTY OF ALBANY, STATE OF NEW YORK OR, IF THE CLAIMS SATISFIES THE SUBJECT MATTER JURISDICATION, THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (C) WAIVES ANY RIGHT TO TRIAL BY JURY.  

14.5 Litigation Costs and Expenses. If Bestpass institutes any legal suit, action, or proceeding against the Customer arising out of or relating to this Agreement, including, but not limited to, contract, equity, tort, fraud, and statutory claims, and Bestpass is the prevailing party, Bestpass is entitled to receive, and the Customer shall pay, in addition to all other remedies to which Bestpass may be entitled, the costs and expenses incurred by Bestpass in conducting and litigating the suit, action, or proceeding, including reasonable attorneys’ fees and expenses, court costs, and litigation-related expenses, even if not recoverable by law (including, without limitation, all fees, taxes, costs, and expenses incident to appellate, bankruptcy, and post-judgment proceedings). 

14.6 Relationship. The Parties are independent business entities. The Agreement does not establish any relationship of partnership, joint venture, employer-employee, or agency between the Customer and Fleetworthy.   

14.7 Publicity. Either Customer or Fleetworthy may publicly disclose the existence of the Agreement and accurately describe their relationship under it provided the terms of the Agreement are not disclosed. Customer may use Fleetworthy’s primary corporate mark on its website to identify Fleetworthy as its service provider and Fleetworthy may use Customer’s primary corporate mark on its website and in its marketing materials to identify Customer as a customer. Each party’s use of the other’s marks shall be subject to any usage guidelines provided by the owner of the marks and to any review requested by the owner of the marks. This right to use the other party’s marks may be withdrawn at any time with reasonable notice from the party that owns the marks.   

14.8 Severability and Survival. If a court of competent jurisdiction finds a provision of the Agreement to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible, the other provisions of the Agreement shall remain in force, and the parties shall negotiate in good faith to amend such invalid/unenforceable provision to reflect the original intent of the Parties while remaining valid and enforceable.  Any provisions of the Agreement that expressly or by implication are intended to survive are enforceable against the Parties and their successors and assignees notwithstanding termination. Any termination of the Agreement shall be without prejudice to the terminating Party’s legal rights and remedies as provided under the Agreement, including injunction and other equitable remedies, subject to the limitations and exclusions set forth in the Agreement. 

14.9 Rights. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)“) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right.  The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise; provided that, the parties intend that the remedy set out in Limited Warranty section is Customer’s exclusive remedy for the Fleetworthy’s breach of the limited warranty set out in that Section.  

14.10 Assignment.  Customer may not directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the Fleetworthy. Any purported assignment or delegation in violation of this Section shall be null and void. Fleetworthy may assign or subcontract the Services.  

14.11 Entire Agreement.  This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.  The parties may not amend this Agreement except by written instrument signed by the parties. Notwithstanding the provisions of this Section, A) for Agreements with minimum fleet size commitments, at each Renewal Term, Fleetworthy reserves the right to increase Customer’s minimum vehicle commitment up to the average level the Customer maintained during the last six months of the Term, and B) for all Agreement, either at the Renewal Term or, in the absence of a Renewal Term, after the effective date of these Terms of Service, Fleetworthy reserves the right to include new or adjust current Fees on at least sixty (60) days’ notice to Customer.  This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement.