1. Introduction

These Terms of Service and any Additional Terms (as defined below) (collectively, “Terms”) are a legal agreement between you, as Customer, Administrator, and/or End User, and Diesel Tech Industries Ltd. (“DTI,” “we,” “our,”or“us“) and govern your use of and access to DTI services) and any software, hardware, mobile applications, tools, features, and other products and services that are made available through our website (https://www.dtiguardian.com) (“Site“) or otherwise made available by us. 

By using the Services in any way, you agree to and accept these Terms, our Privacy Policy, and any other legal notices or guidelines posted on the Site.If you are using our Services for an organization, you are agreeing to these Terms on behalf of that organization. These Terms will also apply when you use the Services on a free or trial basis. By using any of our Services, you agree to these Terms and any other terms, conditions, or policies referenced herein, including any additional terms specific to particular Services you use (collectively, “Additional Terms”). These Additional Terms, such as those listed below, constitute a part of your agreement with us. You should read all of our terms (including the definitions) carefully. If you do not agree to these Terms or are under the age of 18, do not use the Services.

For Customers:

If you are accepting these Terms on behalf of your employer or another entity or for use of the Services by your employer or another entity (“Customer“), you represent and warrant that (a) you have the legal authority to bind the applicable entity to these Terms, and are 18 years or older, and (b) that you agree, on behalf of the entity you represent, to these Terms. If you don’t have the authority to bind your employer or the entity you represent to these Terms, you should not click the checkbox or button or countersign these Terms. If you are accepting these Terms on your own for your own use of the Services as a Customer with an account, you agree that you have the legal authority to agree to these Terms and are 18 years or older.

For End Users:

If you are using the Services as an End User, you agree and acknowledge that the Customer and its Administrator has the ability to access, disclose, restrict, and remove information in or from an End User account, and that the Administrator may be able to monitor, restrict, or terminate access to an End User account.

For Customers who are also End Users:

If you are using the Services as both a Customer and an End User, you are accepting these Terms as both a Customer with a DTI account and as the related End User for such account.

Whenever you use any of our Services you agree to all of these Terms and our Privacy Notice, as well as any additional terms, policies, or guidelines applicable to the specific Services you use.

For example, if you make use of any API from DTI, you will be subject to both these Terms and the API Terms.

2. Description of our Services

2.1 Provision of Services

Customer and End Users may access and use the Services solely in accordance with these Terms and the Documentation.

You may only use our Services and Hardware in accordance with these Terms, which we may change from time to time.

2.2 Modifications

DTI may, at its discretion, change or update the Services and/or these Terms from time to time.

2.3 Customer Support

If you need assistance with the Services, please contact DTI by emailing support@guardianeld.com or by calling DTI at 1-888-235-0244.

2.4 Demo Services

DTI reserves the right to terminate access to Services offered on a demo trial basis at its sole discretion.

3. Customer Use of the Services

3.1 Customer Responsibilities

Customer is responsible for any use of the Services through its account, including all use of the Services by Customer’s End Users and Administrators. Customer’s responsibility extends to use of the Hardware by End Users, including damage to and misuse of the Hardware, as further set forth in these Terms. Customer is responsible for obtaining consents and complying with any laws necessary to allow the operation of the Services, collection of Customer Data, and permission for DTI to process, store, and transfer Customer Data. 

By using our Services here are some of the promises that you make to us:

3.2 Compliance with Laws and Regulations

Customer and End User assume sole responsibility for their compliance with all applicable laws and regulations, including but not limited to any audio or video recording laws, FMCSA Hours of Service of drivers and IFTA. 

3.3 Driver Accounts

Customers may provision accounts for Drivers to access Customer’s Services accounts. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services and preventing unauthorized use of the Services. Customers may not permit sharing of Driver accounts or passwords. Customer agrees to (a) prevent any unauthorized access, sharing, or use by Drivers and terminate any unauthorized use of or access to the Services and (b) provide DTI with notice of such unauthorized access or use.

You will keep your account credentials confidential and not allow any third parties to use your account to access our Services.

3.4 Customer Administration

Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. DTI responsibilities do not extend to a Customer’s internal management or administration of the Services.

You are responsible for the internal management and administration of your Services accounts.

3.5 Compliance

Customer and End Users must only access and use the Services in accordance with these Terms, the Documentation, the Additional Terms, and all applicable laws. Customer will ensure that no person under the age of 18 is allowed to become an End User.

3.6 DTI Rights

Although DTI is not obligated to monitor access to or use of the Services or to review Customer Data, DTI has the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements.  DTI reserves the right, but is not obligated, to remove or disable access to any Customer Data, at any time and without notice, including if DTI believes Customer Data to be in violation of these Terms Under no circumstances will we be liable for the content you or any third party makes available through our Services, including, but not limited to, for any errors or omissions in content or Customer Data, or for any loss or damage of any kind incurred as a result of the use of any content or Customer Data posted, transmitted or otherwise made available via the Service.

3.7 Restrictions

Customer will not (and will not allow any End Users or third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Service, (e) use the Services to create any competitive or other product or service or (f) use, sell, copy, modify, create derivative works based on, publicly perform, publicly display, or distribute the DTI Output outside of the Services, except for regulatory compliance purposes or otherwise with DTI express consent.

3.8 Suspension

DTI, in its sole discretion, may suspend Customer’s or End User’s right to use the Services if (a) Customer’s or End User’s use of the Services poses a security risk to the Services, may violate the Acceptable Use Policy or any Additional Terms, or may adversely affect the Services, DTI’s systems and infrastructure, DTI’s reputation, or a third party, (b) Customer or End User’s use of the Services could subject DTI to liability, (c) Customer is in breach of these Terms, or (d) any default on Customer’s payment obligations (including any payment obligation to any third party equipment financing company). DTI will use commercially reasonable efforts to provide prompt notice of a suspension.

We are not responsible or liable for your use of any Non-DTI Product.

3.9 API 

DTI may make available an API Key to Customer and/or End User solely for such Customer and/or End User’s internal use. Customer and/or End User is solely responsible for use of its API Key by Customer, End User, or any third party, including any Non-DTI Product. By using any API Key, Customer and End User are agreeing to the DTI API Terms of Service. You may not share any API Key with any third party; DTI may suspend your API Key in the event that it becomes aware that such API Key has been shared by you with any third party.

In the event that Customer or any End User authorizes a third party to access any Customer Data or other data or information via an API Key, DTI will not responsible or liable for any act or omission by such third party or use by such third party of the Customer Data or other data shared by Customer or its End Users.

4. Intellectual Property Rights

4.1 Reservation of Rights

Except for the limited licenses granted to Customer and End User in these Terms, DTI and its licensors own and reserve all right, title, and interest in and to the DTI Technology (including the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services).

4.2 DTI License

DTI grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license for Customer and its End Users to access and use the Software (including, as required, to use the Hardware) for personal and internal business purposes during the Services Term.

4.3 Customer License

As between DTI and Customer, Customer shall own and reserve all right, title, and interest in and to the Customer Data. Customer and End User grant DTI, its affiliates, and its contractors (e.g., Amazon Web Services) a worldwide, irrevocable, perpetual, non-exclusive, right to: (i) use, copy, distribute, create derivative works based on, display, and perform Customer Data to provide, analyze, support, operate, and improve the Services, and its affiliates’ services, and to develop new products and services, (ii) share the Customer Data with third parties (such as our partners and vendors) necessary in order to provide the Services, and (iii) as well as for any other lawful purpose authorized by Customer. Please read our Privacy Policy to understand how DTI collects, shares, and uses Customer Data.

4.4 DTI Data

DTI may use and distribute the DTI Data (i) to provide, analyze, operate, and improve the Services and develop new products and services, (ii) to create and distribute reports and materials about the Services, and (iii) for any other lawful purpose. DTI owns and reserves all right, title, and interest in and to the DTI Data. DTI will not indicate to any third party that any DTI Data was provided by, obtained from, or associated with the Customer or Customer’s End Users, without Customer’s consent.

4.5 Suggestions

While Customer or End User retains ownership in any feedback and suggestions, Customer and End User agree that by submitting suggestions or other feedback regarding our Services or DTI, DTI may use such feedback for any purpose without compensation to Customer or End User. DTI appreciates all of your feedback and suggestions, and you can submit feedback by emailing DTI at support@guardianeld.com.

4.6 Publicity

Customer grants DTI the right to use Customer’s name, trademark, and logo on DTI’s website and in marketing materials.

5. Privacy and Security

5.1 Privacy

DTI takes the privacy of its Customers and End Users very seriously. DTI will process Customer Data in accordance with its Privacy Policy.

5.2 Security

DTI uses commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet industry-standards for security.

5.3 Driver Connections and Data

The Services enable commercial motor vehicle driver Customers or End Users (“Driver“) to connect directly with a motor carrier customer of DTI (“vehicle“), allowing Drivers to send messages and automatically share their Customer Data (e.g., driving logs, reports, data, location information) (“Driver Data“) with the vehicle.

When Drivers connect with a Vehicle through the Services, the vehicle’s administrators (“Fleet Administrators”) and its end users (“Fleet Users”) may access Driver Data for the Driver. When Drivers connect with a vehicle through the Services, the Driver consents to automatically and continuously sharing Driver Data with the vehicle and acknowledges that the Fleet Users and Fleet Administrators may send messages and other information to Driver. Vehicles and their Fleet Administrators will be able to disclose and share Driver Data with third parties. DTI will not be liable for any act or omission of a Vehicles, including access to or use of Driver Data or other information or reports.

5.4 Compelled Disclosure

DTI may disclose Customer Data and other information when required by law or regulation, so long as DTI gives the Customer prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Customer’s cost to contest or limit the disclosure.

6. Service-Specific Terms & Conditions

6.1 Hardware Terms

6.1.1 General

Customer may purchase Hardware as further described in an Order Form (“Purchased Hardware”) or from an authorized retailer or a reseller partner, as applicable.

6.1.2 Title

With respect to Purchased Hardware, title (except with respect to the Software installed on the Purchased Hardware) will pass to Customer upon DTI’s delivery to the carrier or at the point of purchase for retail purchases, in each case unless otherwise specified by the authorized retailer or the applicable Lender (as defined below).

6.1.3 Warranty

The terms of the limited warranty for Purchased Hardware are set forth in the DTI Limited Hardware Warranty.

6.2 General Hardware Terms

6.2.1 Delivery and Risk of Loss

All Hardware will be shipped in a commercially reasonable manner to the “ship to” address designated in Customer’s Order Form. Risk of loss for Hardware passes to Customer upon delivery of the Hardware to the “ship to” address, unless purchased from an authorized retailer. Please refer to your Order Form and further communications with DTI regarding the estimated time of delivery of the Hardware. DTI is not liable for any delayed or late delivery of the Hardware. Customer is responsible for all freight, insurance, and other shipping related expenses, including, but not limited to, taxes and duties.

6.2.2 Installation

Customer is solely responsible for installing the Hardware in accordance with DTI’s written instructions and Documentation. Customer agrees that DTI is not liable for any cost, expense or damages arising from the installation of the Hardware.

6.2.3 Battery Drain

The Hardware connects to the battery of a vehicle and consumes a small drain on the vehicle’s battery, which may adversely affect the vehicle while not in operation. DTI is not liable for any consequences of the battery drain associated with use of the Hardware or the Services.

6.2.4 Cables

6.2.4.1 DTI Replacement

If DTI provides Customer with the wrong set of Cables due to no fault of Customer, Customer may, within thirty (30) days of receipt of the Cables, request a replacement set of Cables. DTI will, within fifteen (15) days of Customer’s request, send a replacement set of Cables. Customer must package and return the original Cables within thirty (30) days of Customer’s request. If the original Cables are (a) not returned within thirty (30) days or (b) show evidence of use, DTI will have the right to charge Customer a Replacement Fee.

6.2.4.2 Customer Replacement

If Customer orders replacement Cables for any other reason, Customer may return original Cables that are in new or like-new condition for a credit equal to the current retail price for the original Cables.

6.2.4.3 Cable Charges

DTI may charge Customer a cable fee per unit of Hardware depending on Customer’s Order Form at DTI’s then-current rates for Cables.

6.2.4.4 Compatibility

Customer is solely responsible for determining whether or not the Services and Hardware are compatible with any vehicles utilizing the Services and Hardware. Customer agrees that DTI is not responsible for any cost, expense or damage arising from compatibility issues.

6.3 Additional General Services Terms

6.3.1 Services Credits

If Customer has either (a) made a warranty claim for Purchased Hardware and has purchased Services associated with the Purchased Hardware and DTI has not sent a replacement unit within fifteen (15) days, then upon confirmation by DTI that the warranty claim is valid (e.g., the Hardware is returned before the deadline and the condition has not voided the warranty), DTI will credit Customer a prorated amount of the prepaid fees for Services that were unavailable due to the Hardware defect. If Customer has purchased Services from a reseller, Customer must consult its agreement with the reseller for more information about credits for the Services.

6.4 Additional Terms for Facility Insights

Customer and End User acknowledge and agree that the information provided in DTI’s Facility Insights tool is provided for informational purposes only.  Although DTI attempts to ensure that the information made available through the Facility Insights tool is complete, accurate, and up to date, DTI assumes no responsibility for its completeness, accuracy, or timeliness. 

6.5 Additional Terms for Google Maps

Our Services may incorporate certain Google Maps features and content; and your use of Google Maps features and content is subject to the then-current versions of the: (1) Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html; and (2) Google Privacy Policy at https://www.google.com/policies/privacy/.

6.6 Additional Terms for Financed Equipment

If you are accessing the Services through a third party financing entity (“Lender”), the terms in this Section shall apply. Any obligation you may have to the Lender is absolute and unconditional, not subject to any setoff or counterclaim. You acknowledge and agree that when you sign the financing documents with the Lender, the Lender is prepaying for the Services on your behalf and such prepayment is final and cannot be refunded. You accept the risk that any Services are not provided or are not satisfactory. If you choose to discontinue use of the Services for any reason, you will continue to be liable for any outstanding payment obligations specified in your financing agreement with Lender. If you have any claim against or dispute with DTI, you may not take action by reason of such claims against Lender. If you are purchasing through a Lender, DTI may terminate your access to the Services should you breach these Terms or the terms between you and the Lender. Any refunds issued under this Agreement by DTI shall be remitted to the Lender in reduction of the total number of remaining payments owed by you. DTI shall remit any refunds issued pursuant to these Terms to the Lender in reduction of the total number of remaining payments owed by you.

7. Fees & Payment

7.1 Fees

Upon agreement to an Order Form by the parties, Customer will pay DTI the fees for the Services set forth in the Order Form on the payment schedule set forth in the Order Form.

All payments are due in Canadian. dollars unless otherwise indicated on the Order Form or invoice. Customer is responsible for providing complete and accurate billing and contact information to DTI and updating DTI of any changes. All fees paid are non-refundable unless otherwise set forth in these Terms and are not subject to set-off by Customer. If Customer is purchasing the Services from an authorized reseller, Customer’s payment obligations may be to the authorized reseller.

7.2 Invoicing & Payment

Unless otherwise set forth in the Order Form, all fees will be invoiced or billed in advance. All invoices issued under these Terms are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date. If Customer is paying by credit card, all fees are due and payable immediately, unless otherwise specified in Customer’s Order Form. If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to these Terms and are void.

If Customer is purchasing the Services from an authorized reseller, any terms and conditions between Customer and the authorized reseller that conflict with these Terms are void.

7.3 Credit Card Payment

If Customer provides DTI with credit card information for payment, Customer acknowledges that an invoice may not be sent, and Customer authorizes DTI to charge the credit card for the Services listed in the Order Form on the payment schedule set forth in the Order Form for the Subscription Term and any renewal. Customer also agrees and acknowledges that DTI may charge Customer’s credit card for any required fees, including the Replacement Fees and Restoration Fees. DTI uses a third-party payment processor and Customer’s use of the payment processing service will be subject to the payment processor’s terms and conditions and privacy policy.

7.4 Free Trials and Other Promotions

Any free trial or other promotion that provides access to Services must be used within the specified time of the trial. If DTI has provided Hardware as part of a trial at no cost to Customer (the “Trial Hardware”), and Customer does not wish to continue its Services at the end of the trial, Customer must return the Trial Hardware within thirty (30) days of the end of the trial period. If Customer does not return the Trial Hardware within such timeframe, DTI may bill and invoice Customer Replacement Fees for such Trial Hardware, and Customer is responsible to pay DTI for such Replacement Fees. IF THE CUSTOMER IS IN A TRIAL PERIOD AND THE CUSTOMER HAS ALREADY PROVIDED A METHOD OF PAYMENT TO DTI FOR THE DTI SERVICES, DTI MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL, UNLESS THE CUSTOMER NOTIFIES DTI THAT THE CUSTOMER WANTS TO CANCEL.

7.5 Discontinuation of Services

If Customer chooses to discontinue, cancel or terminate any Services for which Customer has agreed to in an Order Form before the end of the Subscription Term agreed to in such Order Form, DTI shall have the right to immediately invoice Customer or bill Customer’s authorized credit card for any balance due for the remainder of the Subscription Term, including any Replacement Fees and Restoration Fees.

7.6 Late Payments

Past due amounts are subject to a finance charge equal to the lower of 2% per month or the highest rate permitted by law from the payment due date until paid in full.  Customers will be responsible for all reasonable expenses (including attorneys’ fees) incurred by DTI in collecting past due amounts.  If Customer’s fees are past due (including any fees owing to any third party equipment financing company), DTI may suspend the Services automatically and provide notice of termination for material breach.

7.7 Billing Disputes

If Customer disputes any invoices or charges, Customer must let DTI know within sixty (60) days after the date that DTI invoices or bills Customer for the disputed amount.

7.8 Taxes

The Customer is responsible for all taxes, except those directly relating to DTI’s net income, gross receipts, or capital stock. DTI will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides DTI with a valid tax exemption certificate authorized by the appropriate taxing authority.

7.9 Future Functionality

Customer agrees that it has not relied on the availability of any future functionality of the Services or any other future product or service in executing these Terms or any Order Form. Customer acknowledges that information provided by DTI regarding future functionality should not be relied upon to make a purchase decision.

8. Term and Termination

8.1 Services Term

These Terms will continue in full force and effect during the Services Term until they are terminated as described herein.

8.2 Subscription Terms

Unless set forth in an Order Form, following any Subscription Term, whether the initial subscription term or a renewal term, the Subscription Term will renew for a period of the same duration as the last Subscription Term, unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the Subscription Term. UNLESS YOU GIVE NOTICE OF TERMINATION (WHICH CAN BE DONE BY EMAILING US AT SUPPORT@GUARDIANELD.COM OR BY CALLING US AT 1-888-235-0244), YOUR SUBSCRIPTION TERM WILL AUTO-RENEW, AND YOU WILL BE BILLED FEES AT DTI’S THEN-CURRENT NON-PROMOTIONAL RATES.

8.3 Termination for Cause

Either party may terminate these Terms if (a) the other party is in material breach of these Terms and fails to cure that breach within thirty (30) days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. DTI may also terminate these Terms if it has the right to suspend the Services or in order to comply with law or regulation.

8.4 DTI Termination for Convenience

DTI may terminate Customer’s access to and use of the Services for convenience, at its sole discretion, any time upon notice to Customer. In the event of such termination for convenience by DTI, DTI will refund to Customer any prepaid fees for the Services on a prorated basis.

8.5 Customer Termination

Customer may terminate these Terms by providing notice at least thirty (30) days prior to the expiration of the Subscription Term. The Terms will then terminate at the end of the existing Subscription Term and Customer may access the Services until the end of the existing Subscription Term. Customer is responsible for all fees billable through the end of the existing Subscription Term.

9. Warranty

9.1

The warranty for the Hardware is set forth in the Limited Hardware Warranty and is incorporated into and made a part of these Terms. In the event of a conflict between these Terms and the Limited Hardware Warranty, the Limited Hardware Warranty will control.

10. Disclaimers

10.1

TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THESE TERMS AND THE LIMITED HARDWARE WARRANTY, DTI AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE DTI SERVICES AND ANY OUTPUT FROM THE DTI SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF (I) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, AND NON-INFRINGEMENT, (II) ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR (III) THAT THE DTI SERVICES OR ANY DTI OUTPUT ARE, SECURE, ERROR-FREE OR UNINTERRUPTED.

THE DTI SERVICES AND DTI OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND DTI MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, TIMELINESS, OR TRUTHFULNESS OF ANY DTI OUTPUT.   CUSTOMER IS SOLELY RESPONSIBLE FOR (AND DTI DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER’S INSTALLATION OF THE HARDWARE, CUSTOMER’S OR END USER’S USE OF THE DTI SERVICES OR HARDWARE, CUSTOMER’S VEHICLES, AND INTERNET CONNECTIVITY. 

10.2

CUSTOMER AND END USER(S) ACKNOWLEDGE AND AGREE THAT THE DTI SERVICES ARE A DRIVER AID ONLY. THEY ARE NOT A SUBSTITUTE FOR A SAFE, CONSCIENTIOUS DRIVER. THEY CANNOT COMPENSATE FOR A DRIVER THAT IS DISTRACTED, INATTENTIVE, OR IMPAIRED BY FATIGUE, DRUGS, ALCOHOL, OR OTHERWISE. THE DRIVER IS RESPONSIBLE TO AVOID AN ACCIDENT. CUSTOMER’S DRIVERS AND END USERS SHOULD NEVER WAIT FOR ANY OF THE DTI SERVICES TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT OR ANY VIOLATIONS.

FAILURE OF A DRIVER TO TAKE FULL RESPONSIBILITY FOR THE OPERATION OF A VEHICLE AT ALL TIMES CAN RESULT IN SERIOUS PERSONAL INJURY OR PROPERTY DAMAGE.

10.3

CUSTOMER AND END USER(S) ACKNOWLEDGE THAT USE OF THE SOFTWARE (OTHER THAN SOFTWARE EMBEDDED IN HARDWARE), INCLUDING THE APPS, WHILE DRIVING IS STRICTLY FORBIDDEN. DISTRACTED DRIVING IS DANGEROUS AND ILLEGAL IN MANY JURISDICTIONS.

10.4 IFTA Reporting

While DTI strives to create accurate fuel tax reports based on Customer Data and state and federal requirements, these reports are not guaranteed to be correct and are provided to Customer and/or End User for informational purposes only. Customer and End User(s) accept responsibility to ensure the accuracy and the suitability of the reports generated by the Services before submitting them to any state or federal agency. DTI accepts no responsibility or liability for any setbacks, financial or otherwise, incurred by using our Services. It is Customer’s and End User’s sole responsibility to maintain compliance standards for IFTA filing purposes.

10.5 Beta Products

Despite anything to the contrary in these Terms, Customer and End User(s) acknowledge that (a) Customer and/or End User, as applicable, has the sole discretion whether to use any Beta Products, (b) Beta Products may not be supported and may be changed by DTI at any time, including in a manner that reduces functionality, (c) Beta Products may not be available or reliable, and (d) DTI provides Beta Products “as-is” and will have no liability arising out of or in connection with Customer’s or any End User’s use of the Beta Products.

11. Indemnity

11.1 Customer and End User Indemnity

Customer and End User(s) will indemnify, defend, and hold harmless DTI and its affiliates, officers, directors, employees, agents, licensors, and distributors from and against all liabilities, damages, losses, and costs and expenses, including settlement costs and reasonable attorneys’ fees, arising out of a third-party claim regarding (i) Customer’s or End Users’ access to or use of the Services; (ii) Customer Data; (iii) Customer’s or End Users’ breach of these Terms, (iv) Customer’s or End User’s interactions with an Other Party, or (v) negligent acts or omissions of Customer or End Users.

12. Limitation of Liability

12.1

TO THE FULLEST EXTENT PERMITTED BY LAW, DTI AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS WILL NOT BE LIABLE UNDER THESE TERMS OR FROM USE OR INABILITY TO USE THE DTI SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (B) LOSS OF USE, DATA, BUSINESS, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), OR (C) DAMAGES FOR PERSONAL OR BODILY INJURY OR PROPERTY DAMAGE, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER DTI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

12.2

Some of the above limitations or exclusions may not be allowed in your jurisdiction and may not apply to you. The terms of this limitation of liability will apply to the extent permitted by applicable law.

13. General

13.1 Integration

All attachments to the Terms and any Order Forms executed by the parties are hereby incorporated into the Terms by reference. The Terms, including the attachments and Order Forms, constitute the entire and exclusive understanding and agreement between DTI and you regarding the Services, and supersede and replace any and all prior or contemporaneous oral or written agreements between DTI and you regarding the Services, including any non-disclosure agreements.

13.2 Modification

DTI may modify these Terms periodically. If an update will materially affect your use of the Services, DTI will notify you prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately). Otherwise, updates will be effective as of the date posted on this website and it is your responsibility to monitor the Site for updates to these Terms.

By continuing to use the Services or executing additional Order Forms after the changes become effective, you agree to be bound by the modified Terms. If you do not agree to the modified Terms for the Services, you may terminate the Services within 30 days of receiving notice of the change.

13.3 Governing Law

The Terms and the relationship between you and DTI shall be governed by the laws of the Province of Alberta except for its conflict of laws principles.

13.4 Confidentiality

These Terms, Order Forms, and the DTI Technology will be the“Confidential Information”of DTI. You will not (a) use the Confidential Information except as expressly permitted by these Terms and (b) disclose Confidential Information to third parties.

13.5 Notices

Any notices provided by DTI under these Terms, including those regarding modifications to these Terms, will be given by DTI: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.  Notices to DTI must be sent to Diesel Tech Industries Ltd., Attn: Legal Department,, 14215 120 Ave Edmonton, AB T5L2R8 with a copy to support@dtiguardian.com.

13.6 Force Majeure

DTI will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party software or hardware, pandemic and Internet disturbance) that was beyond its reasonable control. If such an event continues for more than twenty (20) days, DTI may cancel unperformed Services upon written notice.

13.7 Relationship of the Parties

The parties are independent contractors. These Terms do not create a partnership, joint venture, or agency relationship between the parties.

13.8 Waiver

DTI’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of DTI. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

13.9 Export Compliance

The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer and/or End User is responsible for compliance regarding Customer’s and its End Users’ use of the Services. Customers will not permit End Users to use the Services from a U.S. embargoed country.

13.10 Contact Information

If you have any questions about these Terms or the Services please contact DTI at support@guardianeld.com, 14215 120 Ave, Edmonton AB, T5L2R8

14. Definitions

14.1

“Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.

14.2

“API” means any API key for the Services that Customer can use or share with a third party for access, collection, and use of Customer Data.

14.3

“Apps” means downloadable software, including the mobile device software.

14.4

“Beta Products” means products, services, or software features available to customers on a trial, beta, early access, or similar basis.  

14.5

“End Users” means users of Customer’s Services account. End Users may include Customer, Customer’s and its affiliate’s employees, agents, and contractors.

14.6

“Customer Information” means any data and information the Customer or its End Users upload, transmits, or submits to the DTI Software, including data and information from Non-DTI Products.

14.7

“Customer Data” means Customer Information and Hardware Data.

14.8

“Documentation” means any DTI-provided written documentation and policies.

14.9

“Hardware” means the DTI devices that are ordered by Customer under an Order Form or otherwise provided by DTI and used by Customer under these Terms.  The following DTI devices are Hardware: the electronic asset tracking device (“Asset Gateway”), the vehicle gateway hardware (which, when coupled with the Software, may function as an electronic logging device)  (“Vehicle Gateway”), the cable sets delivered with an Vehicle Gateway (“Cables”).

14.10

“Hardware Data” means the data and information regarding use of the Hardware, or collected from the Hardware, that DTI makes available to Customer via the Services.

14.11

“IFTA” means the International Fuel Tax Agreement.

14.12

“DTI Data” means (a) usage data, statistics, aggregate data, and de-identified data derived from Customer Data and Hardware Data so that such data does not identify a person or (b) data and information used to generate the Hardware Data.

14.13

“DTI Output” means the Hardware Data and other information and reports made available to the Customer through the Services.

14.14

“DTI Service(s)” means the (a) combined offerings of Software offered as a service and Service-Packaged Hardware, (b) Software offered as a service, either in combination with Purchased Hardware or otherwise, (c) the DTI App Marketplace, (d) support or other services described in an exhibit, attachment, or SOW referencing the Order Form or the Terms, (e) the Software, and (f) the Hardware, in each case that are ordered by Customer under an Order Form or otherwise provided by DTI and used by a Customer, End User, or Administrator under these Terms.

14.15

“DTI Technology” means the Services, Documentation, DTI Data, and DTI’s trademarks, logos, and other brand features.

14.16

“Limited Hardware Warranty” means the limited hardware warranty further described at https://guardianeld.com/warranty.

14.17

“Non-DTI Product” means any Customer-provided or third-party services, products, websites, or applications, such as a service that interoperates with the Services, a website linked from the Services, and any application or service available through the DTI App Marketplace.

14.18

“Order Form” means the (a) ordering document, (b) ordering webpage, or (c) order confirmation or other communication of ordering, in each case for the DTI Services.

14.19

 “Software” means the Site, software embedded in Hardware, and fleet management and other software, including the Apps, that are ordered by Customer under an Order Form or otherwise provided by DTI and used by Customer under these Terms.

14.20

 “Services Term” means the term of these Terms, which begins on the Effective Date and continues until the earlier of the expiration of Subscription Term or these Terms are otherwise terminated.

14.21

“Subscription Term” means the initial subscription term set forth in an Order Form and all renewal terms for the Services.