This ODO Agreement (“Agreement”) contains the terms and conditions that govern your access to and use of the ODO software and is an agreement between DRIVE Software Solutions Ltd and you or the entity you represent (“The Partner”). By accepting this Agreement, either by clicking a box indicating your acceptance, or by signing an Order Form that references this Agreement, you agree to the terms of this Agreement.
If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use or access the Software. You may not access the Software if you are our direct competitor, except with our prior written consent. In addition, you may not access the Software for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on October 23rd, 2020. It is effective between The Parties as of the date of you accepting this Agreement.
1. Parties and Definitions
“The Parties” Drive Software Solutions Ltd and “The Partner”
“The Partner” A legal entity which uses ODO as a service to manage its customers’ vehicles and other associated assets.
“Customer Grey Fleet” This is an ODO vehicle used by The Partner’s customer but not owned or leased by the customer.
“Customer Owned Vehicle” This is an ODO vehicle owned (or leased from a different supplier) by The Partner’s customer.
“Documentation” All the documentation and procedures regarding the use, implementation, training, specifications, development and management of the ODO fleet management system and the DSSL operations thereof.
“First Line Support” Support to a customer for their use of ODO which handles the initial contact (via phone or internet) from the customer and which can deal with superficial problems or questions. More complex issues must be referred to technical specialists.
“ODO” DSSL’s proprietary Fleet Management software package enabled on the Oracle Cloud.
“Owned Vehicle” This is an ODO vehicle leased by The Partner to its customers or used internally by The Partner.
“Software” All the computer programs and software which are known as the ODO fleet management system.
“Source Code” The human readable form of the computer programs and software which make up the Software.
“Proprietary Information” Material and information relating to, or associated with, a company’s products, business, or activities, including but not limited to financial information; data or statements; trade secrets; product research and development; existing and future product designs and performance specifications; marketing plans or techniques; schematics; client lists; computer programs; processes; and know-how that have been clearly identified and properly marked by the company as proprietary information, trade secrets, or company confidential information. The information must have been developed by the company and not be available to the government or to the public without restriction from another source.
DSSL is an established provider of fleet management software and one of its core products is a cloud-based solution called ODO.
The Partner provides a service to its customers including brokered lease vehicle sales and additional fleet management services. The Partner would like to use ODO to manage the vehicles it leases to its customers as well as providing the benefits of ODO to its customers for vehicles not leased by The Partner.
DSSL and The Partner would like to assist each other to achieve mutual commercial benefits through the use by The Partner of ODO as well as the promotion of ODO by The Partner to The Partner’s clients.
3. Main Terms
3.1 For the purpose of this agreement The Partner can sell ODO to any company which has ordered a leased vehicle or fleet services from The Partner.
3.2 The ODO system when delivered to The Partner customers can be dual branded with the Partner logo visible on the ODO User Interface.
3.3 The Partner will adhere to any specific ODO marketing guidelines provided by DSSL. In addition, The Partner agrees to and will abide by the ODO Terms and Conditions as published from time to time on the ODO website. In return, DSSL agrees not to market ODO directly to any company which has ordered a leased vehicle or fleet services from The Partner except by prior agreement between the Parties other than via the in-app marketing capabilities of ODO.
3.4 DSSL will validate any agreed enhancement specifications with The Partner prior to commencing their development and The Partner will test the enhancements to ensure that they function in accordance with the agreed specifications. The intellectual property rights to the enhancements as well as all the software comprising ODO are and will remain the sole property of DSSL.
3.5 DSSL provides first line support to The Partner. Support can be accessed via phone or email. Issues are logged and managed by DSSL’s support team. The Partner will provide first line support to its customers.
3.6 The Partner agrees to pay DSSL the fees as specified in the Broker Offer Document which will be updated from time to time.
3.7 DSSL will invoice The Partner monthly in arrears and will be entitled to collect the payment due by Direct Debit within 7 days of the invoice date.
3.8 The future development plan for ODO includes additional functions and services for which there may be additional charges to ODO customers. It is agreed that The Partner and DSSL will seek to agree mutually beneficial terms which will incentivise The Partner to market these additional functions and services to its customers.
3.9 If The Partner is using the Masternaut Telematics functionality, by default, the Partner’s usage must comply with Masternaut’s terms and conditions. See Appendix 1.
3.10 Promptly following the execution of this Agreement, DSSL and The Partner shall jointly issue a mutually agreeable press release or similar communication announcing the partnership. DSSL will draft The Press Release and will obtain The Partner’s written consent prior to publication of such release, which consent may only be reasonably denied by The Partner.
4. Term and Termination
4.1 Unless otherwise terminated, this Agreement will expire three years from the Agreement Date.
4.2 Either Party will be entitled to terminate this Agreement by written notice to the other Party if the other Party commits a material breach of this Agreement and fails to remedy such material breach within 30 days of receipt of a written notice specifying the breach, requiring it to be remedied and indicating an intention to terminate in the absence of such remedy.
4.3 The Partner shall have the right, without any obligation to assign any reason, at The Partner’s sole option, to terminate this Agreement for convenience by giving thirty (30) days prior written notice to DSSL.
4.4 Either Party shall be entitled to terminate this Agreement if the other Party shall present a petition or have a petition presented by a creditor for its winding up or shall convene a meeting to pass a resolution for voluntary winding up or shall enter into any liquidation (other than for purposes of a bona fide reconstruction or amalgamation) or shall call a meeting of its creditors or shall have a receiver of all or any of its undertakings or assets appointed or shall be deemed by virtue of section 123 of the Insolvency Act 1986 to be unable to pay its debts or shall cease to exist.
5.1 Each party shall hold in confidence all Proprietary Information obtained from the other pursuant to this Agreement.
5.2 Subject to clause 5.4 neither party shall disclose to any third party without the express written permission of the other party any Proprietary Information obtained from the other party.
5.3 The provisions of clauses 5.1 and 5.2 shall not apply to any information which:
5.3.1 is or becomes public knowledge other than by breach of this clause;
5.3.2 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
5.3.3 is received by the receiving party from a third party who lawfully acquired or developed it and who is under no obligation restricting its disclosure; or
5.3.4 must be disclosed by the receiving party in the discharge of its obligations to supply information for parliamentary, governmental, or judicial purposes.
5.4 Nothing in this clause 5 shall be deemed or construed to prevent either Party from disclosing any Proprietary Information to any parent company or any subsidiary or associated company of any parent company or, to any consultant, contractor or other person engaged by the Party in connection with this Agreement provided that the Party shall take all reasonable steps to ensure that such information is acknowledged as being information which is confidential information of the other Party
5.5 The Partner acknowledge that any Proprietary Information obtained from, or relating to, DSSL or its respective servants or agents by The Partner in the course of negotiating, or in the performance of, this Agreement (or by any person employed or engaged by The Partner in connection with this Agreement in the course of such employment or engagement) is and shall remain the property of DSSL or its licensor.
5.6 The Partner undertake to treat as confidential and keep secret all information contained or embedded in the Software and the Documentation and will ensure that the Software and the Documentation are used only in accordance with the provisions of this Agreement and that no part thereof is disclosed, provided, or made available to any third party except as provided by the terms of this Agreement.
5.7 Each Party shall ensure that its employees are aware of and comply with the provisions of this clause.
5.8 The provisions of this clause 5 shall survive the termination of this Agreement howsoever arising.
6. Ownership of Intellectual Property
6.1 The Partner acknowledges that any and all of the copyright, trademarks, trade names, patents and other intellectual property rights subsisting in or relating to the Software or the Documentation shall be and shall remain and will be the sole property of DSSL.
6.2 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the DSSL to the Partner, or from The Partner to DSSL.
6.3 Save for where DSSL undertakes any act knowing or where DSSL ought reasonably to have known that as a result the copyright or other intellectual property right of any third party would be infringed, The Partner shall indemnify DSSL fully against all liabilities costs and expenses which DSSL may incur as a result of work done in accordance with The Partner’s specifications or the use of The Partner’s data or information or carrying out work in accordance with The Partner’s instructions involving the infringement of or which infringes any copyright or other intellectual property right of any third party.
6.4 The provisions of this clause shall survive the termination of this Agreement howsoever arising.
7. Limitation of Liability
7.1 DSSL shall not exclude or limit liability for:
7.1.1 Personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of itself, its servants, agents or subcontractors; or
7.1.2 Fraudulent misrepresentation
7.2 Subject to the provisions of clause 7.1 the total liability of DSSL shall not exceed the applicable financial limit shown here:
7.2.1 The aggregate liability of DSSL for loss or damage to tangible property shall be limited to £250,000 (two hundred fifty thousand pounds Sterling); and
7.2.2 The aggregate liability of DSSL for all other loss shall be limited to the charges paid by the Partner to DSSL in accordance to the terms of this Agreement
7.2.3 The Partner agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the terms of this Agreement have been calculated on the basis of the limitations and exclusions as set out in this clause 7 and The Partner agrees to effect such insurance as is suitable having regard to its particular circumstances and the terms of this Agreement.
7.3 DSSL’s entire liability in respect of software errors and malfunctions will be to use its reasonable endeavours to correct such errors or malfunctions within a reasonable time.
7.4 Without prejudice to the provisions of clause 7.1 in no event shall either party be liable to the other for any economic, indirect or consequential loss or damages including but not limited to:
7.4.1 Loss of profits, business, revenue, goodwill;
7.4.2 Loss of contracts;
7.4.3 Loss of anticipated savings;
7.4.4 Loss of damage to or corruption of data; and/or
7.4.5 Loss of the use of any equipment or process or loss of operational time or loss of availability.
7.5 DSSL shall be liable for, and the levels of liability in this clause 7 shall be applicable to, any acts/or omissions of its servants, agents and subcontractors.
7.6 The provisions of this clause 7 shall survive the termination of this Agreement howsoever arising.
8.1 If any part, term or provision of this Agreement be held illegal, unenforceable or in conflict with the law, the validity or enforceability of the remainder of this Agreement shall not be affected thereby.
8.2 No waiver by either party of any breach of this Agreement by the other shall constitute a waiver of the breach except where made specifically in writing with reference to this Agreement.
8.3 This Agreement (together with the annexes hereto) constitutes the entire agreement between the parties relating to the subject matter of this Agreement to the exclusion of all other items, conditions and warranties, whatsoever. This Agreement shall not be varied save by written agreement between DSSL and The Partner. The terms of The Partner’s Purchase Order (if any) shall be superseded and excluded by the terms and conditions of this Agreement.
8.4 In the event that there is any conflict between the terms of this Agreement and the terms of any of the annexes, the terms of this Agreement shall take precedence.
8.5 Each Party undertakes not to employ, engage or offer to employ or engage or entice away during the period of this Agreement and for a period of 12 months after termination of this Agreement any senior or managerial member of staff employed by the other in the performance of this Agreement.
8.6 Neither Party shall be liable for any inability to comply with its obligations under this Agreement due to any cause whatsoever beyond its reasonable control including (but not limited to) war, riot, civil commotion, strike, lockout or other industrial action, Act of God, storm, fire, earthquake, explosion, flood, electrical failure, confiscation and action of any government or government agency and any time limit imposed for the performance of any obligation shall be extended by a period corresponding to the period of such inability provided always that the party so prevented from performing shall give prompt notice to the other of the circumstances of force majeure.
9. Laws and Jurisdiction
9.1 In the event of negotiations not proceeding for any reason neither of the Parties shall be liable for the costs of the other.
9.2 This Agreement is governed and ruled by the Laws of England.
9.3 Any disputes or any action whatsoever regarding this Agreement will be submitted to the jurisdiction of the Courts of England.
These terms apply when the Partner provides the telematics service and telematics device to a customer
The SIM card included in the telematics devices may only be used within the scope of the telematic Services. The Partner shall be liable for any costs or damages that may arise from any use outside the scope of the telematics Services and the Partner will compensate DSSL against all and any losses and damages (including legal costs) which DSSL may sustain or incur in this respect.”
Note: The Service Provider is the definition of the Broker in the template ODO contract so is used in the wording below.
When providing the Masternaut Telematics Service the following must be included in the contract between the Partner and end customer:-
The SIM card included in the telematics devices may only be used within the scope of the telematic Services. The customer shall be liable for any costs or damages that may arise from any use outside the scope of the telematics Services and the customer will compensate the Service Provider against all and any losses and damages (including legal costs) which the Service Provider may sustain or incur in this respect.”
Masternaut Software Licence
This Licence is granted by Masternaut Limited of Priory Park, Great North Road, Aberford, Leeds LS25 3DF (“MN”) to you (the “Customer”) in respect of the Software (as defined below).
- In this Licence the following words and expressions shall have the following meanings (unless the context requires otherwise):
“Datasets”: any and all cartography, data and information regarding the location and/or availability of various landmarks and facilities including (but not limited to) points of sales for goods and services, graphical icons, geo-coded data and data files, including any and all updates, to be provided in conjunction with the System or residing on the Equipment;
“Development”: any or all developments of, and/or improvements or modifications to the Software, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection;
“Equipment”: MN’s vehicle satellite tracking devices used in the Customer’s vehicles;
“Server Software”: the software programs owned by or subject to a license granted to MN that reside in MN’s service platform from which it provides the System, including any and all updates and new versions thereof;
“Software”: means the Server Software and the Terminal Software;
“System”: the MN vehicle satellite tracking system and services including, without limitation, the web browser interface supplied by MN and the Equipment; and
“Terminal Software”: the software and/or software programs owned by or subject to a license granted to MN that run on the Equipment, including any and all updates and new versions thereof.
- The Customer acknowledges and agrees that, as between the parties, all the intellectual property rights in any and all Software, Developments, Datasets and any user documentation provided in relation to the above and any copies and merged portions thereof (together the “MN Intellectual Properties”) shall at all times remain the sole property of MN or its third party licensors (together the “Licensor”). All rights and all rights of MN not specifically granted under this Licence are reserved by the Licensor.
- Except as expressly permitted herein or strictly required for the purpose of this Licence or any contract relating to the Equipment or the System or permitted by mandatory applicable law, the Customer shall not: (i) sell, lease, license, sub-license, duplicate, copy (except for back-up purposes), modify, reproduce, decompile, disassemble, or reverse engineer any part of the MN Intellectual Properties or attempt to discover any source code or algorithms of any part of the MN Intellectual Properties or otherwise engage in any activities designed to replicate the functionality of any part of the MN Intellectual Properties; (ii) use any part of the MN Intellectual Properties for the purpose of making improvements or modifications to products or services; (iii) create any derivative works of the MN Intellectual Properties; (iv) do anything which might bring into question the Licensor’s ownership of the intellectual property rights in the MN Intellectual Properties or their validity; (v) in any jurisdiction gain or claim any title, right or interest in the MN Intellectual Properties or the intellectual property rights subsisting therein by virtue of the rights granted to it under this Licence; (vi) do anything which is likely to prejudice the Licensor’s rights in and to the MN Intellectual Properties or which may reduce the value of the MN Intellectual Properties; (vii) remove, obscure or alter any copyright notice, trademarks or other proprietary rights and notices displayed, affixed to or contained within the Equipment or any supporting user documentation provided in relation thereto; or (viii) violate any applicable export control laws or regulations.
- Subject to the terms of this Licence and in consideration for the Customer’s payment of all charges due in respect of use of the System and associated services, MN hereby grants to the Customer for period for which the Customer has a valid contract to use the System and associated services a limited, non-perpetual, non-exclusive, non sub-licensable and non-transferable licence to:
(i) use the Terminal Software in object code, and, if applicable, the Datasets residing on the Equipment solely for the purpose of using the System and associated services for the number of items of Equipment ordered by the Customer; and
(ii) access and use the Server Software in object code and any Datasets residing on it as necessary for the purpose of the using the System and associated services as permitted by its contract for such.
- Use of the Equipment will involve accessing data provided by Google and such access is subject to and the Customer agrees to comply with Google’s mapping terms which can be found at the following URL: http://maps.google.com/help/terms_maps.html (or such other URL as may be provided by Google from time to time). The Customer agrees to comply with Google’s AUP which can be found at the following URL: http://www.google.com/enterprise/earthmaps/legal/us/maps_AUP.html.
- The Datasets are provided “as is” and MN makes no representations or warranties regarding them. To the maximum extent permitted by law MN expressly excludes all implied warranties or conditions of any kind, including, without limitation, any warranty or condition of quality, performance, merchantability, fitness for a particular purpose or non-infringement. Except as specifically agreed in writing by MN, MN does not give or make any warranties or representations regarding the use, or the results of the use, of the Datasets or warrant or represent that the Datasets will accurate, up to date or error free. The Customer shall not retain, acquire or assert any right, title or interest in or to the Datasets or in or to the intellectual property rights thereto based on the use of such data.
- The Customer may not use the Datasets:
(i) in connection with the transmission, sale, licence or delivery of any infringing, defamatory, offensive or illegal products, services or materials; or
(ii) to copy, store, archive or create a database of any data within the Datasets except that geocodes may be stored locally for the purposes of using the System.
- The System is subject to the following limitations:
8.1 information is sent from the Equipment to the System through the GSM Network and will not work at places and times when the network used by the Equipment is not available; and
8.2 the System will not be available during scheduled maintenance outages nor during unscheduled outages which may occur from time to time.