MASTER SAFERFLEET AGREEMENT
This Master SaferFleet Agreement (“Agreement”), effective as of the customer’s subscription start date (the “Effective Date”), is entered into by and between the entity identified as “Customer” and Rhythm Industrials, Inc., a Delaware company d/b/a Rhythm Innovations and having a place of business at 13450 W. Sunrise Blvd., Suite 420, Sunrise, FL, 33323 US (“Rhythm”). The parties agree as follows:
1. DEFINITIONS.
Capitalized terms used but not defined elsewhere in this Agreement have the meanings set forth below.
1.1“Customer Data” means data and information submitted by or for Customer into the Software Services.
1.2 “Documentation” means available user guides, documentation, and specifications for the Software Services, as may be updated by Rhythm from time to time.
1.3 “Order” means an order form specifying the Software Service(s) to be provided hereunder that is executed by the parties, including any addenda and supplements thereto.
1.4 “Software Services” means the applicable software services to be provided by Rhythm to Customer over the internet through a web browser or other Rhythm authorized application, as further described and set forth in an Order and this Agreement.
1.5 “Professional Services” means the consulting, implementation, configuration, integration, training, and advisory services to be provided by Rhythm to Customer, as further described and set forth in an applicable Statement of Work (“SOW”), Order, or this Agreement.
1.6 “Data Services” means the data aggregation, ingestion, normalization, enrichment, analytics, and reporting services to be provided by Rhythm to Customer, including the processing of Customer Data and third-party data sources.
1.7 “Managed Services” means the ongoing monitoring, administration, support, and optimization services performed by Rhythm on behalf of Customer to operate and maintain the Software Services and related solutions.
1.8 “Support Services” means the technical support, maintenance, and issue resolution services provided by Rhythm to Customer in connection with the Software Services, including updates and enhancements.
1.9 “Advisory Services” means the strategic, operational, and risk management advisory services provided by Rhythm to Customer, including analysis, recommendations, and best practice guidance.
1.10 “Services” means, collectively, the Software Services, Professional Services, Data Services, Managed Services, Support Services, and Advisory Services to be provided by Rhythm to Customer, including without limitation the provision of software access, data aggregation and analytics, implementation and integration, ongoing monitoring and support, and strategic or operational advisory, all as further described and set forth in an applicable Order, Statement of Work (“SOW”), and this Agreement.
2. SERVICES.
2.1 Orders for Services: Rhythm will make the Software Services available to Customer in accordance with the terms and conditions of this Agreement. In the event of any conflict or inconsistency between this Agreement and an Order, such conflict shall be resolved in accordance with Section 12.17 (Order of Precedence).Rhythm will provide to Customer the Services specified in an Order. Customer will identify to Rhythm, in the manner specified by Rhythm from time to time, its employees that require access to the Services. Rhythm will provide standard support for the Services to Customer at no additional charge (including new releases, upgrades, updates, patches, and bug fixes as they may, from time to time, be developed and made available as part of the Services).
2.2 Delivery: Rhythm may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services. Rhythm may, in its sole discretion, make any changes to any Service that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Rhythm’ products or services to its customers, (b) the competitive strength of, or market for, Rhythm’ products or services, (c) such Services’ cost efficiency or performance, or (ii) to comply with applicable law.
2.3 Protection and Use of Customer Data: Rhythm will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include measures for preventing access, use, modification, or disclosure of Customer Data by Rhythm personnel except: (a) to provide the Services, prevent or address service or technical problems, or as described herein; (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below; or (c) as Customer expressly permits in writing. Customer shall protect and maintain the confidentiality of any logins, passwords or other access credential supplied by Rhythm for use with the Services. Customer is liable for all authorized and unauthorized uses of such account credentials.
3. USE OF SERVICES AND CONTENT.
3.1 Customer Responsibilities: Customer will: (a) be responsible for its and its contractors’ compliance with this Agreement and for all their acts and omissions of as if they were Customer’s acts or omissions; (b) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Rhythm promptly of any unauthorized access or use of which Customer becomes aware; (d) use Services only in accordance with this Agreement, any applicable Order, and the Documentation; (e) comply with all laws applicable to Customer’s use of the Services; and (f) promptly and fully cooperate with Rhythm and make the necessary personnel and resources available to Rhythm for Rhythm to deliver the Services, as reasonably requested by Rhythm.
3.2 Usage Restrictions: Customer will not: (a) use the Services outside the licensing metrics set out in the applicable Order (e.g., per user limitations), if any; (b) make any Service available to, or use any Service for the benefit of, anyone other than Customer; (c) lease, license, sell, sublicense or otherwise transfer its access to or use of the Services, or include any Service in a service bureau or outsourcing offering; (d) use or permit use of any Service in contravention of Section 3.4 (Prohibited Uses); (e) interfere with or disrupt the integrity or performance of any Service; (f) attempt to gain unauthorized access to any Service; (g) permit direct or indirect access to or use of any Service in a way that circumvents a usage limit; (h) copy a Service or any part, feature, function, or user interface thereof; (i) copy any Service except as permitted herein or in an Order or the Documentation; (j) frame or mirror any part of any Software Service; (k) access any Service in order to build a competitive product or service; or (l) reverse engineer any Software Service (to the extent this restriction is permitted by law).
3.3 Technical Requirements: Customer will need certain equipment, software, and Internet access to be able to access theServices. Acquiring, installing, maintaining, and operating equipment and Internet access is solely Customer’s responsibility. Customer is responsible for ensuring that such equipment is compatible with theServices and complies with all configurations and specifications provided by Rhythm, which may be amended from time to time. Rhythm neither represents nor warrants that theServices will be accessible through all web browser releases or used with all operating systems.
3.4 Prohibited Uses: Customer will not and will not permit others in using the Services to: (a) defame, abuse, harass, stalk, threaten any individual or infringe or otherwise violate the legal rights (such as rights of privacy, publicity and intellectual property) of others or Rhythm; (b) distribute any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, or otherwise objectionable material or information (including any unsolicited commercial communications); (c) engage in or encourage any conduct that could constitute a criminal offense or give rise to civil liability for Rhythm; (d) misrepresent or in any other way falsely identify Customer’s identity or affiliation, including through impersonation or altering any technical information in communications using the Services; (e) transmit or upload any material through the Services that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Rhythm’, or any other person’s or entity’s, network, computer system, or other equipment; (f) interfere with or disrupt the Services, networks or servers connected to the Rhythm systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through theServices; (g) attempt to gain unauthorized access to the Services, other Rhythm customers’ computer systems or networks using the Services through any means; or (h) interfere with another person’s use of theServices. Rhythm has no obligation to monitor Customer’s use of the Services. However, Rhythm reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process, or governmental request.
3.5 Removal of Content: If Rhythm is required by any third-party rights holder to remove any content or information, or receives information that any content or information provided to Customer may violate applicable law or third-party rights, Rhythm may remove such content or information and/or notify Customer that it must discontinue all use of such content or information, and to the extent not prohibited by law, Customer will do so and promptly remove such content or information from its systems.
3.6 Nature of Services; Data Reliance; Alerts & Monitoring
Rhythm provides a software platform and related managed safety and compliance support services designed to assist Customer in monitoring, organizing, and administering safety and risk-related information. Rhythm does not provide legal, regulatory, insurance, or employment advice and does not make operational, employment, compliance, or underwriting determinations on behalf of Customer. The Services rely on information and data provided by Customer, its personnel, drivers, employees, third-party vendors, and integrated systems. Customer is solely responsible for ensuring that such information and data are accurate, complete, and timely. Customer acknowledges that data received from third-party sources or integrated systems may be incomplete, delayed, or inaccurate, and Rhythm does not control and is not responsible for the accuracy, completeness, timeliness, or reliability of such data.
The Services may generate alerts, notifications, analytics, or recommendations based on available data. Such outputs are informational only and are not intended to replace Customer’s independent judgment, policies, or procedures. Rhythm does not monitor Customer’s operations in real time and does not guarantee that any alert, notification, or insight will be generated, transmitted, or received in a timely manner, or at all. Customer is solely responsible for reviewing, interpreting, and acting upon any outputs of the Services and for all operational, safety, compliance, and business decisions. Rhythm shall not be responsible or liable for any action or inaction taken by Customer or any third party in reliance on, or failure to act upon, any data, alert, notification, or insight generated by the Services, or for any outcomes arising from incomplete, inaccurate, or delayed data.
Rhythm provides a software platform and related managed safety and compliance support services designed to assist Customer in monitoring, organizing, and administering safety and risk-related information. Rhythm does not provide legal, regulatory, insurance, or employment advice and does not make operational, employment, compliance, or underwriting determinations on behalf of Customer. The Services rely on information and data provided by Customer, its personnel, drivers, employees, third-party vendors, and integrated systems. Customer is solely responsible for ensuring that such information and data are accurate, complete, and timely. Customer acknowledges that data received from third-party sources or integrated systems may be incomplete, delayed, or inaccurate, and Rhythm does not control and is not responsible for the accuracy, completeness, timeliness, or reliability of such data.
The Services may generate alerts, notifications, analytics, or recommendations based on available data. Such outputs are informational only and are not intended to replace Customer’s independent judgment, policies, or procedures. Rhythm does not monitor Customer’s operations in real time and does not guarantee that any alert, notification, or insight will be generated, transmitted, or received in a timely manner, or at all. Customer is solely responsible for reviewing, interpreting, and acting upon any outputs of the Services and for all operational, safety, compliance, and business decisions. Rhythm shall not be responsible or liable for any action or inaction taken by Customer or any third party in reliance on, or failure to act upon, any data, alert, notification, or insight generated by the Services, or for any outcomes arising from incomplete, inaccurate, or delayed data.
3.7 Driver Record and Consumer Data Compliance
3.7.1 FCRA and DPPA Compliance: Rhythm is not a consumer reporting agency as defined under the Fair Credit Reporting Act (“FCRA”) and does not provide consumer reports, background screening services, or investigative consumer reports.
Rhythm’s platform and Managed Safety & Compliance Services facilitate the administrative monitoring and coordination of safety and compliance information and are not intended to serve as employment screening or background investigation services.
To the extent Customer utilizes third-party services that provide motor vehicle records (MVRs), Pre-Employment Screening Program (PSP) driver records, background screening information, or other driver-related data subject to the Fair Credit Reporting Act or the Driver’s Privacy Protection Act (“DPPA”), Customer is solely responsible for:
3.7.2 Privacy and Regulated Information: To the extent any information subject to applicable privacy laws, including the Health Insurance Portability and Accountability Act (“HIPAA”), is provided to Rhythm, Customer is responsible for ensuring that such information is shared in compliance with applicable laws and that all required authorizations or consents have been obtained.
3.7.1 FCRA and DPPA Compliance: Rhythm is not a consumer reporting agency as defined under the Fair Credit Reporting Act (“FCRA”) and does not provide consumer reports, background screening services, or investigative consumer reports.
Rhythm’s platform and Managed Safety & Compliance Services facilitate the administrative monitoring and coordination of safety and compliance information and are not intended to serve as employment screening or background investigation services.
To the extent Customer utilizes third-party services that provide motor vehicle records (MVRs), Pre-Employment Screening Program (PSP) driver records, background screening information, or other driver-related data subject to the Fair Credit Reporting Act or the Driver’s Privacy Protection Act (“DPPA”), Customer is solely responsible for:
- ensuring it has a permissible purpose for obtaining such information,
- complying with all required notice, authorization, consent, and disclosure obligations, and
- maintaining records of such authorizations as required by applicable law.
3.7.2 Privacy and Regulated Information: To the extent any information subject to applicable privacy laws, including the Health Insurance Portability and Accountability Act (“HIPAA”), is provided to Rhythm, Customer is responsible for ensuring that such information is shared in compliance with applicable laws and that all required authorizations or consents have been obtained.
3.8 Insurance Relationship:Customer acknowledges that it may be introduced to Rhythm or the Services through an insurance broker, retail agent, or managing general agent (“MGA”). Any such broker, agent, or MGA is acting solely as an independent intermediary and is not an employee, agent, partner, or representative of Rhythm. No such party has authority to bind Rhythm, modify this Agreement, or make representations, warranties, or commitments on behalf of Rhythm. Unless expressly agreed in writing, no broker, agent, or MGA is a party to this Agreement, and no such party shall have any rights, obligations, or liabilities hereunder.
Customer acknowledges that any insurance products, underwriting decisions, or coverage terms are solely between Customer and its insurer or intermediary, and are independent of the Services. Rhythm does not provide insurance, underwriting, or risk transfer services. To the extent Customer authorizes the sharing of data with insurers, brokers, or MGAs, such sharing shall be governed by this Agreement and any applicable Data or Aggregated Insights provisions. Customer authorizes Rhythm to share Customer Data, including operational and safety-related data, with Customer’s designated insurers, brokers, MGAs, and authorized partners, solely as necessary to deliver Services, support insurance-related programs, or enable risk evaluation, provided such sharing is consistent with this Agreement and applicable law.
Customer acknowledges that any insurance products, underwriting decisions, or coverage terms are solely between Customer and its insurer or intermediary, and are independent of the Services. Rhythm does not provide insurance, underwriting, or risk transfer services. To the extent Customer authorizes the sharing of data with insurers, brokers, or MGAs, such sharing shall be governed by this Agreement and any applicable Data or Aggregated Insights provisions. Customer authorizes Rhythm to share Customer Data, including operational and safety-related data, with Customer’s designated insurers, brokers, MGAs, and authorized partners, solely as necessary to deliver Services, support insurance-related programs, or enable risk evaluation, provided such sharing is consistent with this Agreement and applicable law.
4. PROPRIETARY RIGHTS AND LICENSES.
4.1 Reservation: Rhythm and its licensors reserve all their rights, title, and interest in and to the Services and the Documentation, including all updated, upgrades, or derivative works from the foregoing, and all intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
4.2 Access to Services: Subject to Customer’s compliance with this Agreement and any Orders, Rhythm grants to Customer a non-exclusive, personal, non-transferable, limited license for its employees to access and use the Services and Documentation solely for Customer’s internal business purposes.
4.3 Customer Data:
Customer grants to Rhythm and its subcontractors a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, translate, and otherwise use and process Customer Data as reasonably necessary or useful to perform its obligations or exercise its rights under this Agreement. Customer warrants to Rhythm that Customer has the right to grant the foregoing license and provide Customer Data to Rhythm in accordance with this Agreement.
4.4 Data Broker Clarification and Aggregated Insights:
Data Broker Clarification; Aggregated Insights
Rhythm does not sell, rent, license, or otherwise make available to any third party any identifiable Customer Data, including identifiable information relating to Customer’s drivers, employees, or operations, except as expressly authorized by Customer or required to provide the Services. Rhythm may collect, use, and commercialize Aggregated Insights derived from Customer Data, provided that such Aggregated Insights: (a) are de-identified and/or aggregated such that they do not identify, and cannot reasonably be used to identify, Customer, any individual, or any specific vehicle, operation, or incident; and (b) are used for purposes including benchmarking, analytics, product improvement, risk modelling, underwriting support, and industry research.
Rhythm may license Aggregated Insights to insurers, reinsurers, brokers, and other risk-bearing entities for underwriting, pricing, benchmarking, and portfolio risk management purposes, provided such data remains de-identified.
For clarity, Aggregated Insights do not constitute Customer Confidential Information, provided that Customer Data in its identifiable form remains Confidential Information subject to Section 6. Rhythm shall implement reasonable administrative, technical, and organizational measures designed to prevent re-identification of Aggregated Insights.
Rhythm does not sell, rent, license, or otherwise make available to any third party any identifiable Customer Data, including identifiable information relating to Customer’s drivers, employees, or operations, except as expressly authorized by Customer or required to provide the Services. Rhythm may collect, use, and commercialize Aggregated Insights derived from Customer Data, provided that such Aggregated Insights: (a) are de-identified and/or aggregated such that they do not identify, and cannot reasonably be used to identify, Customer, any individual, or any specific vehicle, operation, or incident; and (b) are used for purposes including benchmarking, analytics, product improvement, risk modelling, underwriting support, and industry research.
Rhythm may license Aggregated Insights to insurers, reinsurers, brokers, and other risk-bearing entities for underwriting, pricing, benchmarking, and portfolio risk management purposes, provided such data remains de-identified.
For clarity, Aggregated Insights do not constitute Customer Confidential Information, provided that Customer Data in its identifiable form remains Confidential Information subject to Section 6. Rhythm shall implement reasonable administrative, technical, and organizational measures designed to prevent re-identification of Aggregated Insights.
4.5 Participation in Aggregated Insights Programs:
Customer acknowledges and agrees that: (a) participation in aggregated data models enhances benchmarking, predictive analytics, and risk intelligence across the Services; and (b) Aggregated Insights may be used by Rhythm and its partners, including insurers, brokers, and service providers, in de-identified and aggregated form.
Where permitted by applicable law, participation in Aggregated Insights programs may be a condition of eligibility for certain insurance-aligned offerings, pricing, underwriting consideration, or risk-sharing programs.
To the extent required by applicable law, Customer shall obtain any necessary consents or provide any required disclosures to enable such participation. Customer may opt out of such participation where required by law.
Where permitted by applicable law, participation in Aggregated Insights programs may be a condition of eligibility for certain insurance-aligned offerings, pricing, underwriting consideration, or risk-sharing programs.
To the extent required by applicable law, Customer shall obtain any necessary consents or provide any required disclosures to enable such participation. Customer may opt out of such participation where required by law.
5. FEES AND PAYMENT TERMS
5.1 Services Fees: For the Services provided under this Agreement, Customer will pay Rhythm the subscription fees in accordance with the amounts set forth in Exhibit A.
Customer will pay all invoices within fifteen (15) days from the date of the Rhythm invoice. All fees paid and expenses reimbursed under this Agreement will be in United States currency. Rhythm will increase its fees annually on the subscription renewal date as specified in the Order by a minimum of 3% or the annual CPI as defined herein, whichever amount is greater. The CPI adjustment will be determined as follows: the All-Urban Consumer Price Index (CPI-U) for All-items, nationally (non-seasonally adjusted) as published by the U.S. Bureau of Labor Statistics for the month immediately preceding the Customer’s annual subscription renewal date.
Customer will pay all invoices within fifteen (15) days from the date of the Rhythm invoice. All fees paid and expenses reimbursed under this Agreement will be in United States currency. Rhythm will increase its fees annually on the subscription renewal date as specified in the Order by a minimum of 3% or the annual CPI as defined herein, whichever amount is greater. The CPI adjustment will be determined as follows: the All-Urban Consumer Price Index (CPI-U) for All-items, nationally (non-seasonally adjusted) as published by the U.S. Bureau of Labor Statistics for the month immediately preceding the Customer’s annual subscription renewal date.
5.2 Late Fees: If any invoiced amount is not received by Rhythm by the due date, then, without limiting Rhythm’ rights or remedies, those amounts will accrue interest at a rate of 1.5% per month or the maximum allowed under state law (whichever is lower). Rhythm, at its option, may suspend the Services, in whole or in part, if Rhythm does not receive all undisputed amounts due and owing under this Agreement within thirty (30) days after delivery of notice to Customer of the failure to pay such overdue balances. Rhythm shall be entitled to an award for its reasonable attorney’s fees and collection costs in connection with Customer’s breach of its payment obligations.
5.3 Taxes: Rhythm’ fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, even if such amounts are not listed by Rhythm. If an applicable tax authority requires Rhythm to pay any taxes that should have been payable by Customer, Rhythm will advise Customer in writing of its obligation, and Customer will promptly reimburse Rhythm for the amount paid or assessed.
5.4 No Offset: Fees and expenses due from Customer under this Agreement may not be withheld or offset by Customer against other amounts for any reason.
6. NON-DISCLOSURE AND CONFIDENTIALITY
6.1 Definition of Confidential Information: “Confidential Information” means information disclosed by a party to the other party that is designated as confidential or that reasonably should be considered confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Rhythm includes the Services and Documentation; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents. Confidential Information does not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information. For clarity, Aggregated Insights generated in accordance with Section 4.4 shall not be considered Confidential Information.
6.2 Requirement of Confidentiality: The Recipient agrees that it will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates’, officers, employees, consultants and legal advisors who have a “need to know,” who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 6; and (b) use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under this Agreement. The Recipient will promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 6 will survive termination and continue for so long as the applicable information constitutes Confidential Information.
6.3 Compelled Disclosure: The Recipient may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Recipient gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.4 Feedback: Any feedback, comments, suggestions, or proposed modifications to the Software Services provided by or on behalf of Customer to Rhythm may be freely used by Rhythm without duty of confidentiality, limited use, notice, or accounting.
7. THIRD PARTY SERVICES
7.1 Integration with Third Party Services: The Services may contain features designed to interoperate with products, applications, or services not provided by Rhythm, including those provided by Salesforce and other telematics providers, motor vehicle record providers, background screening providers, and any other system or data source.To use such features, Customer may be required to purchase or obtain access to such Third-Party Services directly from the applicable provider and grant Rhythm access to Customer’s account(s), data, or systems as necessary to enable the Services. Customer shall provide, and shall cause the applicable Third-Party Service providers to provide, Rhythm with any reasonably requested information, access, and materials necessary to enable integration, administration, and delivery of the Services.
Customer acknowledges and agrees that Rhythm’s Services may rely on data generated, processed, or maintained by Third-Party Services, including telematics systems, electronic logging devices, safety monitoring systems, and motor vehicle record or driver-related data providers. Rhythm does not control and is not responsible for the collection, accuracy, completeness, timeliness, legal classification, or regulatory status of data provided by such Third-Party Services.
Rhythm’s role with respect to Third-Party Services is limited to facilitating integration, administrative coordination, and presentation of information through the Services. Rhythm does not provide consumer reports, background screening services, or investigative consumer reports, and is not a consumer reporting agency under the Fair Credit Reporting Act. Customer is solely responsible for ensuring compliance with all applicable laws in connection with its use of Third-Party Services and related data, including obtaining any required notices, authorizations, and consents under applicable law, including the Driver’s Privacy Protection Act.
Customer further acknowledges that interruptions, delays, errors, or inaccuracies in the Services may result from Third-Party Services, and Rhythm shall not be responsible or liable for any unavailability, failures, or performance issues attributable to such Third-Party Services.
For the avoidance of doubt, Rhythm does not control Customer’s operations, employees, or drivers, and the Services. These servicesare informational and administrative in nature. Customer retains sole responsibility for all operational, safety, employment, and compliance decisions.
Customer acknowledges and agrees that Rhythm’s Services may rely on data generated, processed, or maintained by Third-Party Services, including telematics systems, electronic logging devices, safety monitoring systems, and motor vehicle record or driver-related data providers. Rhythm does not control and is not responsible for the collection, accuracy, completeness, timeliness, legal classification, or regulatory status of data provided by such Third-Party Services.
Rhythm’s role with respect to Third-Party Services is limited to facilitating integration, administrative coordination, and presentation of information through the Services. Rhythm does not provide consumer reports, background screening services, or investigative consumer reports, and is not a consumer reporting agency under the Fair Credit Reporting Act. Customer is solely responsible for ensuring compliance with all applicable laws in connection with its use of Third-Party Services and related data, including obtaining any required notices, authorizations, and consents under applicable law, including the Driver’s Privacy Protection Act.
Customer further acknowledges that interruptions, delays, errors, or inaccuracies in the Services may result from Third-Party Services, and Rhythm shall not be responsible or liable for any unavailability, failures, or performance issues attributable to such Third-Party Services.
For the avoidance of doubt, Rhythm does not control Customer’s operations, employees, or drivers, and the Services. These servicesare informational and administrative in nature. Customer retains sole responsibility for all operational, safety, employment, and compliance decisions.
7.2 Permissions; Disclaimer: The Services may support integration with Third-Party Services. Customer’s use of any Third-Party Service in connection with the Services is optional and at Customer’s sole election, except where certain Third-Party Services are required for specific features or components of the Services. Customer acknowledges that such Third-Party Services are not provided or controlled by Rhythm. If Customer elects to enable, integrate, or use a Third-Party Service with the Rhythm Services, Customer grants Rhythm a limited, non-exclusive right to permit to allow the Third Party Service and its provider to access, use, transmittion, and process of any Customer Date (including data that may constitute Confidential Information) solely as necessary to enable the interoperation of such Third-Party Service with the Services. Customer acknowledges and agrees that any acquisition, use, or integration of a Third-Party Service, and any exchange of data between Customer and such Third-Party Service or its provider, is solely between Customer and the applicable third-party provider and is governed by Customer’s agreement with such provider. Rhythm is not responsible or liable for any disclosure, modification, corruption, or deletion of such data residing on a Third-Party Service or if resulting from access by any Third-Party Service or its provider. Any acquisition by Customer of a Third-Party Service, and any exchange of data between Cstomer and any Third-Party Service or its provider, is solely between Customer and the applicable third-party provider. Rhythm does not warrant or support any Third-Party Service or other third-party products or services. Further, Rhythm cannot guarantee the continued availability of any Software Service features that interoperate with Third Party Service, and may cease providing them without being in breach of this Agreement or entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the applicable Software Service or your agreement with the provider of the Third Party Service expires or terminates for any reason.
7.3 Salesforce Pass-Through Terms: Customer shall comply with the terms and conditions found at https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/OEM-Pass-Through-Terms.pdf (or such successor URL as may be published from time to time) (the “SF Terms”), which are hereby incorporated by reference. In addition, the SF Terms are also for the benefit of Salesforce, Inc. and are enforceable by it as a third-party beneficiary.
7.4 Audit and Compliance Verification: Upon reasonable prior notice and no more than once annually, Customer may request documentation reasonably demonstrating Rhythm’s compliance with its data protection and security obligations. Rhythm may satisfy such requests through existing reports, certifications, or summaries.
7.5 Suspension Rights: lates applicable law, (ii) breaches this Agreement, or (iii) poses a security, legal, or operational risk to Rhythm or its customers.
8. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
8.1 Mutual Representations: Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
8.2 Performance Warranty: Rhythm represents and warrants that the Services will conform substantially with the Documentation under normal use and circumstances. Customer shall promptly notify Rhythm of any material nonconformance. Rhythm’s sole obligation, and Customer’s exclusive remedy, for breach of this warranty shall be for Rhythm to use commercially reasonable efforts to correct such nonconformance through support services.
8.3 Customer Warranties: Customer represents and warrants that (a) Customer will use, and will ensure that all users use, each Service in full compliance with this Agreement, the Documentation and all applicable laws and regulations; (b) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by anyService or any Third Party Service; and (c) it shall comply with the terms and conditions of its agreement(s) with each provider of a Third Party Service.
8.4 Compliance with Communication Laws: The Software Services may enable Customer to send communications to third parties, including, without limitation, emails, SMS/text messages, push notifications, and in-application messages (collectively, “Communications”).
The Services contain functionality that enables Customer to send notifications to third parties, including emails and in-app messages. Without limiting Customer’s other obligations herein, Customer will comply with the Telephone Consumer Protection Act (“TCPA”) and its implementing regulations, the CAN-SPAM Act, and its implementing regulations, and any applicable federal or state law requirements related to making, sending, or receiving email or other messages. As between Rhythm and Customer, Customer affirms it is solely responsible for complying with the forgoing laws, rules, and regulations, including maintaining an accurate and complete record of the status of a third party’s consent, revocations of consent, including the language consented to and the date of consent and revocation, if applicable, and all such records will be retrievable. Upon request by Rhythm, Customer will provide proof of any such third party’s consent status. In addition to Customer’s obligations under Section 10.2,Customer shall not use the Software Services to send unlawful, unsolicited, or non-compliant Communications, including, without limitation, prohibited automated or prerecorded messages where consent has not been properly obtained. Customer shall indemnify and hold the Rhythm-related indemnified parties against any and all damages, including reasonable outside attorneys’ fees, that the Rhythm-related indemnified parties may suffer or incur arising out of or in connection with any and all of Customer’s actions or inactions that constitute a failure to comply with this Section. Section 9 does not apply to Customer’s obligations under this Section or any breach thereof, which shall constitute a material breach of this Agreement.
The Services contain functionality that enables Customer to send notifications to third parties, including emails and in-app messages. Without limiting Customer’s other obligations herein, Customer will comply with the Telephone Consumer Protection Act (“TCPA”) and its implementing regulations, the CAN-SPAM Act, and its implementing regulations, and any applicable federal or state law requirements related to making, sending, or receiving email or other messages. As between Rhythm and Customer, Customer affirms it is solely responsible for complying with the forgoing laws, rules, and regulations, including maintaining an accurate and complete record of the status of a third party’s consent, revocations of consent, including the language consented to and the date of consent and revocation, if applicable, and all such records will be retrievable. Upon request by Rhythm, Customer will provide proof of any such third party’s consent status. In addition to Customer’s obligations under Section 10.2,Customer shall not use the Software Services to send unlawful, unsolicited, or non-compliant Communications, including, without limitation, prohibited automated or prerecorded messages where consent has not been properly obtained. Customer shall indemnify and hold the Rhythm-related indemnified parties against any and all damages, including reasonable outside attorneys’ fees, that the Rhythm-related indemnified parties may suffer or incur arising out of or in connection with any and all of Customer’s actions or inactions that constitute a failure to comply with this Section. Section 9 does not apply to Customer’s obligations under this Section or any breach thereof, which shall constitute a material breach of this Agreement.
8.5 Disclaimer: OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 8, RHYTHM DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER REGARDING THIS AGREEMENT AND THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY RHYTHM. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS. RHYTHM DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDER. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ALL OPERATIONAL, SAFETY, EMPLOYMENT, AND COMPLIANCE DECISIONS, AND FOR ANY ACTIONS TAKEN OR NOT TAKEN BASED ON THE SERVICES.
9. LIMITATION OF LIABILITY.
9.1 Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Liability Cap. EXCEPT FOR A PARTY’S BREACH OF SECTION 6 (NON-DISCLOSURE AND CONFIDENTIALITY) OR A PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO RHYTHM PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. INDEMNIFICATION.
10.1 Rhythm Indemnification. Rhythm will defend Customer and its officers, directors, employees, agents, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party alleging that Customer’s receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of that third party (each, a “Claim Against Customer”), and will pay all settlements entered into and damages awarded against Customer as a result of a Claim Against Customer; provided, however, that Rhythm will have no obligations under this Section 10.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Customer to Rhythm; (b) use of the Services in combination with any materials or equipment not supplied to Customer or specified by Rhythm in writing; (c) any modifications or changes made to the Services by or on behalf of any person or entity other than Rhythm; (d) the use of any version of the Services other than the most current release made available by Rhythm; (e) Customer Data; or (f) Customer’s breach of this Agreement, the Documentation, or the applicable Order(s). If a Service, or any part thereof, becomes, or in the opinion of Rhythm may become, the subject of a claim of infringement or misappropriation, Rhythm may, at its option: (x) obtain a license for Customer’s continued use of that Service in accordance with this Agreement; (y) replace or modify the Services so that they are no longer claimed to infringe or misappropriate; or (z) terminate this Agreement and refund to Customer any portion of the fees prepaid by Customer for the infringing Service.
10.2 Customer Indemnification. Customer will defend Rhythm and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party: (a) alleging that any information or materials provided by Customer (including Customer Data), or Rhythm’ receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of that third party; (b) arising from Customer’s breach of Section 3.2; (c) arising from Customer’s failure to comply with applicable law; or (d) arising from a dispute between Customer and any client of Customer (each of (a) – (d), a “Claim Against Rhythm”) and will pay all settlements entered into and damages awarded against Rhythm as a result of a Claim Against Rhythm.
10.3 Indemnification Procedures. The party seeking indemnification hereunder will promptly notify the indemnifying party in writing of a claim for which it seeks indemnification hereunder and will cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party will immediately take control of the defence and investigation of the claim and will employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party will not settle any claim hereunder in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 10.3 will not relieve the indemnifying party of its obligations under this Section 10 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
11. TERM AND TERMINATION.
11.1 Term.This Agreement will commence on the Effective Date and shall continue in accordance with the terms in the Order Form.
11.2 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, this Agreement may be terminated by either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party, with a material breach including Customer’s failure to pay, when due, any fees due to Rhythm.
11.3 Effect of Termination or Expiration. The expiration (as distinct from the termination) of this Agreement will not terminate any Order that is then in effect and not otherwise terminated and, notwithstanding anything in this Section 11.3, the terms and conditions of this Agreement will continue in effect with respect to any such Order until its expiration or termination. Subject to the preceding sentence, upon expiration or termination of this Agreement for any reason: (a) all Orders hereunder will terminate, and all rights and licenses granted by Rhythm hereunder to Customer will immediately cease; and (b) Customer will immediately cease use of any Services and, within thirty (30) days after termination or expiration of this Agreement, return to Rhythm or, at Rhythm’s written request destroy, all Rhythm Confidential Information in Customer’s possession or control. The following sections of this Agreement will survive its termination or expiration: Section 1 (Definitions); Section 3.5 (Removal of Content); Section 4.1 (Reservation); Section 4.3 (Customer Data); Section 5 (Fees and Payment Terms); Section 6 (Non-Disclosure and Confidentiality); Section 8.5 (Disclaimer); Section 9 (Limitation of Liability); Section 11.3 (Effect of Termination or Expiration); Section 11.4 (Portability and Deletion); and Section 12 (General).
11.4 Portability and Deletion. If Customer requests in writing within 30 days after the effective date of termination or expiration of this Agreement: (a) Rhythm will make Customer Data available to Customer for export or download and (b) Rhythm will return to Customer all Customer Confidential Information other than Customer Data in Rhythm’s possession or control. After that 30-day period, Rhythm will have no obligation to maintain or provide any Customer Confidential Information and will thereafter delete or destroy all copies of Customer Confidential Information in its systems or otherwise in its possession or control, unless legally prohibited. For the avoidance of doubt, Rhythm’ obligations under this Section 11.4 do not apply to Blind Data.
12. GENERAL.
12.1 Insurance. Rhythm maintains and will maintain the following insurance policies during the Term with one or more insurance carriers having at least a minimum A.M. Best’s rating of A-/VII: (a) Workers’ Compensation and Employers’ Liability. Statutory limits (workers’ compensation) and not less than $1,000,000 per claim (employers’ liability); (b) Commercial General Liability of not less than $5,000,000 combined single limit for property damage and bodily injury per occurrence, including Contractual Liability, Broad Form Property Damage, Bodily Injury, Personal and Advertising Injury, and Products and Completed Operations Liability coverages, provided that such limits may be satisfied with any combination of primary and umbrella insurance; and (c) Network Security/Privacy Liability/Cyber Coverage in an amount not less than $1,000,000 per occurrence or per claim, providing coverage for unauthorized access to or use of a computer network and unauthorized access to or dissemination of personally identifiable information. Rhythm may satisfy two or more of the policy requirements in this section with the same insurance policy.
12.2 Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties. Exclusive venue for any action arising out of or in connection with this agreement shall be in Florida. The parties each hereby consent to the jurisdiction and venue in Broward County, Florida, and waive any objections to such jurisdiction and venue.
12.3 Delay in Performance. If Rhythm’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Rhythm shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay, and Rhythm’s obligation to perform will be extended by the same number of days as Customer’s contingent action is delayed.
12.4 Conflicting Terms in Customer Purchase Orders. Notwithstanding the content of any Customer purchase order or any other document or record generated by Customer (other than an executed Order), whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement will govern and any conflicting, inconsistent, or additional terms contained in such documents will be null and void.
12.5 Notice. All communications required or otherwise provided under this Agreement will be in writing and will be deemed given when delivered (a) by hand, (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a nationally recognized overnight courier service; to the address set forth for the applicable party on the first page of this Agreement, as may be amended by the party by written notice to the other party in accordance with this Section 12.5.
12.6 Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign this Agreement, in whole, to a successor of all or substantially all of the assets of that party through merger, reorganization, consolidation or acquisition. If a party makes any attempted assignment, transfer, or other conveyance in violation of the foregoing, the attempted assignment, transfer, or other conveyance will be null and void.
12.7 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same may not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another.
12.8 Severability. In case any one or more of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.
12.9 Entire Agreement. This Agreement, including the schedules and exhibits hereto and Orders entered hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
12.10 Publicity. Customer shall permit Rhythm to feature Customer in a press release upon execution of this Agreement and shall permit Rhythm to feature Customer in marketing materials following the implementation of the Services. Rhythm and Customer agree to collaborate on public announcements and marketing materials and shall refrain from issuance or distribution of marketing materials without first obtaining the prior written consent of the other party, which shall not be unreasonably withheld.
12.11 Amendment; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.
12.12 Export. Customer shall not itself, or permit any third party, to, export, re-export or release, directly or indirectly, the Services to any country, jurisdiction or individual person to which the export, re-export or release of the Service (a) is prohibited by applicable law and associated regulations or (b) without first completing all required undertakings, including obtaining any necessary export license or other governmental approval. Customer will indemnify and hold Rhythm harmless from any breach of this section.
12.13 Force Majeure. Neither party will be liable for delay or failure in performing any of its obligations (other than payment obligations) hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, actions or orders, epidemics or pandemics, terrorism, denial of service, ransomware or other cyberattacks, communication or utility failures or casualties or the failures or acts of third parties.
12.14 Equitable Relief. Each party acknowledges that a breach by a party of Section 3.2 (Usage Restrictions) or Section 6 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
12.15 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors, unless otherwise agreed to in the Order Form, and permitted assigns and, except as expressly set forth in Section 7.3 and 10, nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
12.16 Relationship of Parties. Nothing in this Agreement will constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party will have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
12.17 Order of Precedence: In the event of a conflict, the following order of precedence applies: (1) Order Form, (2) applicable Addenda, (3) this Agreement.
