BEWHERE TERMS AND CONDITIONS

1. General. The Solution (as defined in Section 2 below) is a third-party service provided by BeWhere, Inc. (“BeWhere”), having its principal place of business at 2475 Skymark Ave, Unit 4, Mississauga, Ontario, L4W 4Y3. Ford Pro as defined in the Ford Pro Subscription Services Terms & Conditions (the “Ford Pro T&Cs”) incorporating these BeWhere Terms and Conditions, is an authorized reseller of the Solution and BeWhere’s asset tracking devices (“Devices”). By your access and use of the Solution with the Devices, you (“Customer”) agree to these terms and conditions (“BeWhere Terms and Conditions”).

2. Devices. The Devices and servers process data in accordance with the settings selected by Customer to monitor the location and status of assets linked to Customer’s Ford Pro Telematics account (the “Solution”). Each Device is subject to the usage documentation applicable to it, if any. Customer and Customer Users (as defined below) shall use the Device in accordance with applicable documentation and in compliance with all applicable laws (“Laws”).

3. Customer Users. For purposes of these BeWhere Terms and Conditions, a “Customer User” means individuals authorized by Ford Pro to use the Devices or whose data is collected by the Devices in connection with the Solution, including but not limited to employees, contractors, or end-users.

4. Prohibited Uses.

4.1  Except as specifically permitted herein, without the prior written consent of BeWhere, Customer shall not, and shall not allow any Customer User or any third party to, directly or indirectly: (a) copy, modify, create derivative works of or distribute any part of the Solution (including by incorporation into its products); (b) sell, license (or sub- license), lease, assign, transfer, pledge, or share Customer’s rights under these BeWhere Terms and Conditions with any third party; (c) use any “open source” or “copyleft software” in a manner that would require BeWhere to disclose the source code of the Solution to any third party; (d) disclose the results of any testing or benchmarking of the Solution to any third party; (e) disassemble, decompile, reverse engineer or attempt to discover the Solution’s source code or underlying algorithms; (f) use the Solution in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (g) remove or alter any trademarks or other proprietary notices related to the Solution; (h) circumvent, disable or otherwise interfere with security-related features of the Solution or features that enforce use limitations; (i) export, make available or use the Solution in any manner prohibited by Laws, including without limitation export control and sanctions Laws which prohibit the use of the Solution in sanctioned countries (currently, Cuba, Iran, North Korea, Syria, the Donetsk People’s Republic region, the Luhansk People’s Republic region, and thBeWhere may terminate Customer’s access to the Solution, in the event that Customer breaches the provisions of this Section 4.

4.2  No High-Risk Use: The Devices and Solution are not intended for use in any environment or application in which the failure of the Devices and Solution could lead to death, personal injury, or severe physical or environmental damage. Customer agrees not to use (or permit others to use) the Devices and Solution in connection with life-support systems, emergency communications, autonomous vehicle operation, or other high-risk activities. Any such use is at Customer’s own risk, and BeWhere disclaims all liability for consequences of such use.

5. Hardware Warranty

5.1 Warranty Scope: BeWhere warrants that all hardware products including the Devices (“Goods”) shall be free from defects in materials and workmanship for a period of three (3) years from the original date of purchase (“Warranty Period”). This warranty is provided only to the original purchaser and is not transferable.

5.2 Exclusions: This warranty does not cover: (a) damage due to transportation, storage, misuse, or improper installation;

(b) unauthorized modifications or repairs; (c) use with unapproved systems or accessories; (d) normal wear and tear; or (e) any cause beyond BeWhere’s reasonable control. The warranty does not cover failures caused by customer equipment or use in unintended environments.

5.3 Exclusive Remedy: BeWhere’s sole obligation under this warranty is, at its discretion, to repair or replace any defective Goods. Any replacement will not extend the original Warranty Period. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BeWhere shall not be liable for any incidental or consequential damages.

6. Customer as Controller.

6.1 Customer determines the purposes for which the Solution is used and the means to collect data from the Devices through the settings of each Device. Customer agrees to comply with all Laws relating to privacy and the protection of personal data in any relevant jurisdiction worldwide, including (without limitation): the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act (“CPRA”); the General Data Protection Regulation (“GDPR”); any local, state, or federal privacy Laws or guidelines.

IT IS CUSTOMER’S RESPONSIBILITY AND DUTY TO INFORM CUSTOMER USERS OF (a) THE EXISTENCE OF THE DEVICE, (b) THE NATURE OF THE SOLUTION AND DATA COLLECTED BY THE SOLUTION, AND (c) CUSTOMER USERS’ RIGHTS AND OBLIGATIONS ACCORDING TO ANY LAWS. WHEREVER AN EXPLICIT CONSENT OF A PERSON IS REQUIRED FOR CUSTOMER’S USE OF THE SOLUTION ACCORDING TO ANY LAWS, IT IS CUSTOMER’S RESPONSIBILITY TO ATTAIN SUCH CONSENT FROM THE PERSON, IN THE FORM AND TO THE EXTENT REQUIRED.

6.2 IF CUSTOMER IS AN EMPLOYER AND MAKES USE OF THE DEVICES AND THE SOLUTION WITH RESPECT TO ITS EMPLOYEES OR CONTRACTORS, CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER’S USE OF THE DEVICES AND THE SOLUTION COMPLIES WITH ALL APPLICABLE LAWS, INCLUDING LABOR LAWS, AND PRIVACY LAWS.

7. Data.

7.1 All data captured through Customer’s use of the Devices (e.g. data collected by, entered into or processed through the Solution), is “Customer Data.” Except as set forth in the Ford Pro T&Cs, Customer shall own its Customer Data. Customer Data does not include any Device Technical Information. “Device Technical Information” means Device technical information (such as Device identifiers, status information, and other technical information that is routinely uploaded) or insights and other information, data, or content (such as locations of road signs and traffic signals) that has been calculated, processed, or derived from Customer Data, including, without limitation, through the use of algorithms, all of which are owned by BeWhere and may be shared and retained by BeWhere for its own business purposes. Device Technical Information shall not be derived (directly or indirectly) from or contain personal data.

7.2 Customer hereby grants BeWhere the right to access, use, and disclose Customer Data as follows: (a) BeWhere may process Customer Data as necessary to fulfill its obligations as a sub-processor or service provider (as such or similar terms are defined by Laws) for the provision of services as specified herein, including, without limitation, the provision of the Solution and the Devices; (b) Customer hereby instructs BeWhere to deidentify Customer Data that contains or was derived from personal data, and BeWhere may use such deidentified data solely for purposes of providing the Solution to Customer, ensuring the security of the Solution and the Devices, ensuring the integrity of Customer Data, or improving the Solution or the Devices provided to Customer, provided that BeWhere shall comply with Laws with respect to deidentified data, including by not, and not permitting a third party to, attempting to reidentify any deidentified Customer Data except to the extent reidentification is expressly permitted by Laws and provided that such purposes shall be permitted only for the term of the Customer’s subscription for the Solution; (c) BeWhere may use Customer Data that does not contain and was not derived (directly or indirectly) from personal data for any other lawful business purpose (and such right shall survive termination or expiration of the Ford ProT&Cs).

7.3 BeWhere may collect, use and retain Device Technical Information, for its own business purposes, including sale of same, provided that Device Technical Information does not identify Customer.

7.4 BeWhere will not sell or share personal data (as such terms are defined under applicable data protection laws, including the CCPA/CPRA) with third parties for any purpose other than providing the Solution and fulfilling its obligations under these BeWhere Terms and Conditions. BeWhere further will not use personal data for any other commercial purpose, except as expressly permitted herein and in compliance with applicable data protection laws.

7.5 BeWhere shall implement reasonable technical and organizational security measures to protect personal data it processes on behalf of Customer Users. To the extent required by the applicable data protections laws, BeWhere will also provide reasonable assistance to Customer Users for data subject access, correction or deletion requests.

8. Intellectual Property Rights.

The Solution is licensed and not sold and is BeWhere’s property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Solution and BeWhere’s proprietary software embedded on the Devices, and any and all improvements and derivative works thereof, are and shall remain owned solely by BeWhere or its licensors. These BeWhere Terms and Conditions do not convey to Customer any interest in or to the Solution other than a limited right to use the Solution in accordance with these BeWhere Terms and Conditions. Nothing herein constitutes a waiver of BeWhere’s intellectual property rights under any Laws. Any suggestions, ideas, enhancement requests, or other feedback provided by Customer or Customer Users relating to the Solution or Devices may be used by BeWhere without restriction and do not entitle Customer to any compensation or ownership interest in any improvements to the Solution.

9. Disclaimer.

TO THE EXTENT PERMITTED BY LAWS, THE SOLUTION IS PROVIDED ON AN “AS IS” BASIS BY BEWHERE TO CUSTOMER. BEWHERE DOES NOT PROVIDE CUSTOMER WITH ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY; AND, TO THE EXTENT PERMITTED BY LAWS, BEWHERE AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, AND DISTRIBUTORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BEWHERE AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, AND DISTRIBUTORS MAKE NO WARRANTY THAT (A) THE SOLUTION WILL WORK IN COMBINATION WITH ANY HARDWARE OR SOFTWARE PRODUCTS PROVIDED BY THIRD PARTIES, (B) THE OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, (C) ALL DEFECTS IN THE SOLUTION OR THE DEVICES CAN BE CORRECTED, OR (D) ANY SPECIFIC RESULT OR OUTCOME WILL BE ACHIEVED BY UTILIZING THE SOLUTION. EXCEPT AS EXPRESSLY SET FORTH HEREIN, BEWHERE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE CUSTOMER DATA CAPTURED. CU RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM ALL DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) RELATING TO THE ACTION OR INACTION OF CUSTOMER USERS.

9.1 BEWHERE’S ABILITY TO PROVIDE THE SOLUTION IS SUBJECT TO THE AVAILABILITY OF CELLULAR CONNECTIVITY TO THE DEVICE. CUSTOMER ACKNOWLEDGES THAT THE SOLUTION IS MADE AVAILABLE ONLY WITHIN THE OPERATING RANGE OF APPLICABLE CELLULAR NETWORKS AND CUSTOMER’S SERVICE AREA. SERVICE MAY BE TEMPORARILY REFUSED, INTERRUPTED, OR LIMITED BECAUSE OF: (A) FACILITIES LIMITATIONS;  (B) TRANSMISSION LIMITATIONS CAUSED BY ATMOSPHERIC, TERRAIN, OTHER NATURAL OR ARTIFICIAL CONDITIONS ADVERSELY AFFECTING TRANSMISSION, WEAK BATTERIES, SYSTEM OVERCAPACITY, MOVEMENT OUTSIDE A SERVICE AREA OR GAPS IN COVERAGE IN A SERVICE AREA AND OTHER CAUSES REASONABLY OUTSIDE OF CARRIER’S CONTROL SUCH AS, BUT NOT LIMITED TO, INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THE NETWORK OR DISRUPT SERVICE; OR (C) EQUIPMENT MODIFICATIONS, UPGRADES, RELOCATIONS, REPAIRS, AND OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF THE SOLUTION. CARRIER PARTNER NETWORKS ARE MADE AVAILABLE AS-IS AND CARRIER AND BEWHERE MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE AVAILABILITY OR QUALITY OF ROAMING SERVICE PROVIDED BY CARRIER PARTNERS, AND NEITHER CARRIER NOR BEWHERE WILL BE LIABLE IN ANY CAPACITY FOR ANY ERRORS, OUTAGES, OR FAILURES OF CARRIER PARTNER NETWORKS. IF CELLULAR CONNECTIVITY IS INCLUDED WITH CUSTOMER’S SUBSCRIPTION TO THE SOLUTION, CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER:  (a) HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER WITH RESPECT TO THE SOLUTION; (b) IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN BEWHERE AND THE UNDERLYING CARRIER; (c) THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE WITH RESPECT TO CELLULAR CONNECTIVITY FOR THE DEVICES; (d) THAT DATA TRANSMISSIONS MAY BE DELAYED, DELETED, OR NOT DELIVERED; AND (e) THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SOLUTION OR THE DEVICE. CARRIER HAS NO LIABILITY OF ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE WITH RESPECT TO CELLULAR CONNECTIVITY FOR THE DEVICES; (d) THAT DATA TRANSMISSIONS MAY BE DELAYED, DELETED, OR NOT DELIVERED; AND (e) THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SOLUTION OR THE DEVICE

9.2 FOR THE AVOIDANCE OF DOUBT, REFERENCES TO “DISTRIBUTORS” IN THIS SECTION AND ELSEWHERE IN THESE BEWHERE TERMS AND CONDITIONS INCLUDE FORD PRO.

10. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAWS, IN NO EVENT SHALL BEWHERE OR ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SOLUTION OR THE DEVICE. UNDER NO CIRCUMSTANCES WILL BEWHERE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SOLUTION, THE DEVICES, CUSTOMER’S ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY LAWS,  BEWHERE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, OMISSIONS, MISTAKES, OR INACCURACIES FROM THE SOLUTION OR RESULTS THAT ARE OBTAINED FROM USE OF THE SOLUTION (E.G., DATA, INFORMATION, LOCATION, ETC.); (II) PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S ACCESS TO OR USE OF THE SOLUTION; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF BEWHERE’S SERVERS AND/OR ANY AND ALL PERSONAL DATA STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOLUTION; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SOLUTION BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SOLUTION; (VII) DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF CUSTOMER OR ANY PERSON OR THIRD PARTY; AND/OR (VIII) ANY ACTION OR INACTION OF THIRD PARTIES.

IN NO EVENT SHALL BEWHERE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY PERSON FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE FEES PAID BY CUSTOMER IN RESPECT TO THE DEVICES AND THE SOLUTION DURING THE ONE-YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BEWHERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAWS IN THE APPLICABLE JURISDICTION. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS SECTION DOES NOT LIMIT THE LIMITATION OF LIABILITY TERMS IN THE FORD PRO T&Cs.

11. Indemnification.

Without limiting Customer’s indemnification and other obligations under the Ford Pro T&Cs, Customer agrees to defend, indemnify, and hold harmless BeWhere and its affiliates and its and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses (including but not limited to attorney’s fees) arising from (a) Customer’s breach of these BeWhere Terms and Conditions or any Laws; or (b) Customer’s violation of any third party right through Customer’s use of the Devices or the Solution in a manner inconsistent with these BeWhere Terms and Conditions or not permitted by Laws, including, without limitation, any privacy rights, employment and labor rights, or copyright and other intellectual property rights. Without derogating from or excusing Customer’s obligations under this Section 10, BeWhere reserves the right, but is not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by Customer if Customer chooses not to defend or settle it. Customer agrees not to settle any matter subject to an indemnification by Customer pursuant to this Section 10 without first obtaining BeWhere’s express written approval.

12. Third Party Beneficiary.

Customer acknowledges and agrees that BeWhere is a third-party beneficiary to the Ford Pro T&Cs solely for purposes of these BeWhere Terms and Conditions and that BeWhere will have the right to enforce these BeWhere Terms and Conditions against Customer as a third-party beneficiary thereto.