Last updated - May 2023.
ELECTRIC VEHICLE DATA AGREEMENT
This Electric Vehicle Data Agreement (“Agreement“) is an agreement between Utilimarc, LLC, a Minnesota limited liability company with offices at 1660 South Highway 100, Suite 319, St. Louis Park, Minnesota 55416 (“Utilimarc”) and the entity you represent (“Client“) and contains the terms and conditions that govern Client’s receipt and use of, and Utilimarc’s provision of, the Services (as defined below).
Utilimarc provides fleet data analytics, benchmarking, and telematics services, consulting services, and software and other technology solutions. Utilimarc desires to collect and aggregate data on electric fleet vehicles in order to establish and enhance electric vehicle metrics for the fleet industry. Client desires to share certain electric vehicle data with Utilimarc and, in return, receive certain electric vehicle metrics.
This Agreement takes effect the earlier of (each, to “Accept”, and the date upon which Client Accepts this Agreement is the “Effective Date”): (a) when Client clicks an “I Accept,” “Agree”, “Continue”, or similar check box or button presented with this Agreement; or (b) when Client uses the Services. THE INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF CLIENT REPRESENTS TO UTILIMARC THAT HE/SHE HAS LEGAL AUTHORITY TO BIND CLIENT.
BY ACCEPTING THIS AGREEMENT, CLIENT ACKNOWLEDGES THAT CLIENT HAS READ AND UNDERSTANDS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREES TO BE LEGALLY BOUND BY THEM. IF CLIENT DOES NOT AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CLIENT IS NOT AUTHORIZED TO USE THE SERVICES.
1. EV Data. At Client’s discretion, Client may provide Utilimarc with the requested raw data about Client’s electric fleet vehicles (“EV Data”) in the timeframe, form and format requested by Utilimarc. Client will retain ownership of the EV Data it provides to Utilimarc, and Utilimarc acknowledges this raw data is Client’s confidential information. Client agrees that EV Data shall not include any personally identifiable information. Utilimarc will protect EV Data provided to it in accordance with its Data Security Exhibit, available at https://www.utilimarc.com/datasecurity/. Client agrees that Utilimarc may use the EV Data to create and store anonymized summary data about electric vehicles, which Utilimarc shall own and may use and monetize as part of its current and future products and services.
3. Term and Termination. The term of this Agreement shall commence on the Effective Date and continue thereafter until Client has not provided Utilimarc with any new EV Data for one year. In addition, either party may terminate this Agreement by providing at least thirty (30) days’ written notice (email acceptable) to the other party. Upon termination of this Agreement, at Client’s request, Utilimarc will delete Client’s raw EV Data.
4. Intellectual Property. Utilimarc shall be the exclusive owner of all right, title, and interest in and to the Services and in and to all software, technology, materials, information, data and items related to the Services including, but not limited to, the Platform, dashboards, summary and other compiled data, all underlying processes, techniques, trade secrets, methodologies, any proprietary information of Utilimarc, and any other works, extensions, enhancements or applications derived therefrom, as well as any and all trademark, service mark, trade dress, copyright, or other intellectual property rights in any of the foregoing. This Agreement does not grant Client any rights in or to the Services or any of its components except as specifically set forth herein. Utilimarc reserves all rights in and to the Services not expressly granted under this Agreement. In addition, Utilimarc shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into its products and services any enhancement requests, recommendations, improvements, enhancements or other feedback provided by Client to Utilimarc relating directly or indirectly to the Services.
5. Exclusion of Warranties. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UTILIMARC MAKES NO WARRANTIES AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
6. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR COVER DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOST REVENUES, SAVINGS, LOST DATA, OR LOSS OF USE OR GOODWILL OR OTHER INTANGIBLE LOSSES) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The total liability of Utilimarc under this Agreement will not exceed $5,000 USD.
7. Notices. Any notices required or permitted to be given under this Agreement: (a) shall be in writing signed by or on behalf of the party making the same; (b) shall be deemed given or delivered (i) if sent by confirmed e-mail, when received, (ii) if sent by messenger or overnight courier service, when delivered; and (c) shall be addressed to each party at its address set forth above, or at such other address as the party shall designate in writing by confirmed e-mail, messenger, or overnight courier service.
8. General. Utilimarc will provide the Services as an independent contractor and not as an employee, agent, representative, or partner of Client. This Agreement, including exhibits and policies, contains the entire agreement between the parties with respect to the subject matter hereof and replaces and supersedes all prior arrangements or agreements between the parties relating to such subject matter. Except for the Policies, which Utilimarc has the right to change on its own from time to time, this Agreement may not be modified except by a writing signed by both parties. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, excluding its choice of law and conflicts of law rules. For purposes of resolving conflicts related to or arising out of this Agreement, the parties consent to the jurisdiction of and venue in the federal and state courts of the State of Minnesota, located in Hennepin County, Minnesota. Either party may assign this Agreement to an affiliate or successor-in-interest of its business upon notice to the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns. Injunctive or other equitable relief shall be a remedy available to either party in the event of a breach of any provision of this Agreement by the other party, but such remedy shall not be the exclusive remedy available to the parties. The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless made in writing. In the event any portion of this Agreement is held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement.
4872-6671-9840, v. 1
Last updated - april 2023.
DATA SECURITY EXHIBIT
In the course of providing the Services, Utilimarc may collect, transfer, store and use Client Data (as defined and as permitted in the Agreement) that is provided to, collected by or made accessible to Utilimarc. For these purposes, Client Data may be transferred to or be accessible to: (i) Utilimarc personnel as is required to perform the Services in accordance with the Agreement; (ii) third parties where required by law (including, but not limited to, courts, law enforcement, or regulatory authorities), provided Utilimarc will provide reasonable notice to Client prior to any such disclosure if legally permissible; and (iii) others who are providing services pursuant to the Agreement.
Utilimarc shall maintain internal company wide policies and procedures addressing the secure storage and handling of Client Data.
Information Security Management Program
Utilimarc has developed, documented, approved, and implemented IT security policies and/or procedures that include reasonable administrative, technical, and physical safeguards to protect assets and Client Data from loss, misuse, unauthorized access, disclosure, alteration, and destruction. Such security policies and procedures address, but are not limited to, the following areas:
- Risk management
- Written security policy
- Human resources security
- Compliance to policies
- Vendor management
- Access control
- Operations security
- Network security
- Information security incident response
- Disaster recovery
Utilimarc management reviews IT security at planned intervals or as a result of changes to the organization to ensure its continuing effectiveness and accuracy.
In the course of providing the Services for Client, Utilimarc shall do the following:
- Designate security and privacy personnel responsible for the development and implementation of the IT security policies and procedures;
- Implement reasonably appropriate technical safeguards designed to protect the security and integrity of Client Data, such as firewalls, intrusions detection systems, multi-factor authentication, logging and monitoring systems, anti-virus software, access control systems and encryption;
- Restrict access to Client Data to approved users who have a need to access such Client Data to perform Utilimarc’s obligations under the Agreement;
- In a reasonably timely manner, de-provision, revoke, or modify user access to Utilimarc’s systems, information assets and Client Data upon any change in status of employees, contractors, or business partners. A change in status includes termination of employment or contract, change of employment, or transfer within the organization.
- Maintain policies for data retention, purging, and storage, and backup/redundancy mechanisms; and
- Implement reasonable physical and security safeguards to restrict access to Client Data.
Utilimarc shall have a defined and documented disaster recovery policy for technology disaster recovery. Such policy shall:
- Document a plan for Utilimarc’s recovery from an unforeseen disaster or emergency which interrupts information systems and business operations;
- Provide for reasonable physical protection against damage from deliberate attacks as well as natural causes and disasters; and
- Identify an appropriate backup strategy to include redundancies and durable storage infrastructure to permit restoration of the Services with a maximum recovery time objective of not more than 24 hours from declaration of a disaster.
- Utilimarc shall ensure security mechanisms and redundancies are implemented to reasonably protect equipment from utility service outages (e.g., power failures, network disruptions, etc.).
- Utilimarc shall conduct a compliance review of such policy each year. Client may request a high level summary of the results of such review.
Security Incident Response
Utilimarc will maintain information security incident response procedures to respond to Security Incidents within the Cloud Services. Utilimarc shall provide timely notification to Client of Security Incidents after becoming aware of an actual Security Incident involving Client Data. Timely notification is defined as providing notice to Client as soon as reasonably practicable and without undue delay after Utilimarc became aware of the Security Incident. Utilimarc will respond to, contain and remediate Security Incidents, using commercially reasonable efforts, on a continuous basis. A “Security Incident” is a security compromise of a Utilimarc network or server used to provide the Cloud Services resulting in the unauthorized access, use, transfer or acquisition of Client Data. Utilimarc shall inform Client about incident response activities in reasonable intervals until the incident is resolved. Utilimarc will further maintain a process to capture and apply knowledge gained from such events to address the likelihood of reoccurrence.