GreenRoad Mobile US – Terms and Conditions
In this Agreement, capitalized terms shall have the meanings set out below and in the text of the Agreement:
“Accident” means an accident involving one of Your vehicles, vehicles under Your control or vehicles used by Users.
“Customer Data” means the User related data transmitted by the Software or through the Service and any other electronic data, information or material provided or submitted by Users to GreenRoad in connection with the Services, which may include Personal Information.
“Confidential Information” means any and all information disclosed by one party to the other party, whether furnished prior to, on or after the date hereof.
“Effective Date” means the date on which the Software is delivered to You.
“Feedback” means any ideas, suggestions, questions, materials, or comments You provide GreenRoad in connection with the Services and/or the Software.
“GreenRoad’s Assistance” means GreenRoad’s assistance in connection with or arising from an Accident in: (i) providing information and analysis of reports created by the GreenRoad’s products Software or Services;(ii) compliance with any court orders or court requests upon GreenRoad; and (iii) involvement, more generally, with any court or additional dispute resolution process, negotiations or settlement.
“Intellectual Property Rights” means all worldwide (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
“Initial Term” means as set forth in Section 8.
“Order Form”/”Order” means the order form issued to you by GreenRoad that incorporates the terms of this Agreement.
“Service” means the online, web-based business application including content and associated offline components, made available by GreenRoad to You.
“Software” means GreenRoad’s mobile edition, generally available on IOS and Android and which monitors driving events and vehicle movement.
“Term” means as set forth in Section 8.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service on Your behalf and for Your benefit under the terms of this Agreement and have been supplied with user identifications and passwords by You (or by GreenRoad at your request).
2. END USER RIGHTS AND USE
2.1. Subject to the terms and conditions of this Agreement and payment of all applicable fees and charges in connection therewith, GreenRoad shall grant You a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the Term (as defined below) to use the Service and the Software solely for your internal, in-house business use only within the territory in which You are domiciled. GreenRoad (or its licensors) reserves all rights in the Service and the Software and all Intellectual Property Rights therein.
2.2. GreenRoad reserves the right to perform maintenance of the Service as needed and, except in the event of emergency maintenance, will make reasonable efforts to provide reasonable notice to You of any unavailability and the reasons, therefore. You acknowledge that GreenRoad shall not be responsible for providing internet access or any equipment or services necessary to utilize internet access.
2.3. A User account is required to access the Service, which may be used only by authorized Users. User accounts shall not be “shared” or used by more than one User. You are responsible for any and all activities that occur under your User accounts, including without limitation any loss or damage which results from their misuse.
2.4. Except as expressly set forth herein, You shall not (nor shall You permit others to) (a) copy, market, lease, pledge, share, license, sublicense, sell, resell, transfer, assign, reproduce, distribute or otherwise make available to any third party the Service or the Software, (b) modify, adapt or make derivative works based upon any software used in the Service or the Software; (c) retransmit or link the Service/Software (including “framing” or “mirroring” any content contained in, or accessible from the Service/Software) to any other server, wireless or internet-based device; (d) use, modify, translate, incorporate into or with other software, or create a derivative work of any part of the Service/Software; (e) copy or reproduce, distribute or publish the Service/Software; (f) use or permit the Service/Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; (g) disclose, publish or otherwise make publicly available the results of any benchmarking of the Service/Software, or use such results for your own competing software development activities; (h) modify, disassemble, decompile, reverse engineer, revise or enhance the Service/Software or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Service/Software; (i) remove or otherwise alter any of the GreenRoad’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed or attached to the Service/Software; (j) ship, transfer, or export the Service/Software or use the Service/Software in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export the Service/Software: (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (iv) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. You agree to the foregoing and warrant that You are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (j) exceed any use limitations or other restrictions which are specified in the Order; (k) contest GreenRoad’s Intellectual Property; (l) place the Service/Software onto a server so that it is accessible via a public network or use the Service/Software for service bureau purposes; (m) utilize the Service/Software including without limitation any related point of presence, servers and network, in any way which will result in the violation or circumvention of any applicable laws or regulations including, without limitation, those enforcing censorship, privacy, government authority restrictions or other; (n) use the Service/Software for any purpose other than as permitted by this Agreement; (o) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service/Software, such as features that restrict or monitor use of the Service/Software; or (p) cause or permit any third party to do any of the foregoing. You are solely responsible for acquiring and maintaining all of the hardware, software and services necessary to access and make use of the Service/Software, including without limitation paying all fees and other costs related to internet access, server or cloud account subscription and maintenance. You shall ensure that the Users comply with the terms of this Agreement applicable to Users and You shall be solely responsible for any breach of this Agreement by a User. You must comply with all the dependencies set forth in the User manual. You are solely responsible to ask GreenRoad for SIM suspension when roaming to other countries and GreenRoad is hereby released of any liability in connection therewith.
2.5. You must provide any of your personnel including without limitation your employees, sufficient training and environment in order to use the Service.
3. PROPERTY RIGHTS
You shall remain the sole and exclusive owner of the Customer Data. GreenRoad, or its licensors is and shall remain the sole and exclusive owner of the Software, the Service, the Device(s), Software, Feedback, and all documentation provided by GreenRoad, as well as any modifications, enhancements and derivatives thereof and all Intellectual Property Rights thereto (“GreenRoad IPR“). Nothing herein contains shall be construed as granting You or any third party any right, title or interest in or to GreenRoad IPR. You hereby assign and shall continue to assign all right, title and interest in and to any GreenRoad IPR and waive any and all claims, demands, rights and interest in connection therewith. You hereby grant to GreenRoad and its affiliates an irrevocable, perpetual, royalty-free, worldwide, sublicensable, transferable, assignable right and license to use, sublicense, reproduce, maintain, modify, display, create derivative works of, and otherwise fully exploit and commercialize the Customer Data.
4. WARRANTIES, DISCLAIMERS, LIMITATIONS OF LIABILITY, AND INDEMNIFICATION
4.2. THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GREENROAD, ITS AFFILIATES, LICENSORS, SUPPLIERS AND VENDORS DISCLAIM ALL EXPRESSED OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGMENT, THAT THE SERVICE OR SOFTWARE WILL MEET ALL OF YOUR REQUIREMENTS, OR THAT THE SERVICE AND SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS FREE, OR ERROR-FREE. NOR DOES GREENROAD (OR ITS AFFILIATES, LICENSORS, VENDORS OR SUPPLIERS) MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR SOFTWARE OR THAT ALL ERRORS IN THE SERVICE OR SOFTWARE WILL BE CORRECTED.
4.3. GREENROAD ITS AFFILIATES, LICENSORS, SUPPLIERS AND VENDORS SHALL NOT BE LIABLE FOR ANY DAMAGES FOR BODILY, AND/OR PERSONAL INJURY OR DAMAGE TO THE VEHICLE OR OTHER VEHICLES OR PROPERTY.
4.4. YOU HEREBY CONFIRM THAT YOU FULLY AND FOREVER RELEASE AND FOREVER DISCHARGE AND IRREVOCABLY WAIVE ANY AND ALL RIGHTS, COMMITMENTS, ACTIONS, CHARGES, COMPLAINTS, PROMISES, AGREEMENTS, CONTROVERSIES, DEBTS, DUES, CLAIMS, COUNTERCLAIMS, SUITS, JUDGMENTS, CAUSES OF ACTION, DAMAGES, LOSSES, DEMANDS, LIABILITIES, OBLIGATIONS, COVENANTS, COSTS AND EXPENSES OF EVERY KIND AND NATURE WHATSOEVER, KNOWN OR UNKNOWN, AT LAW OR IN EQUITY, CONTINGENT, CONSEQUENTIAL, INCIDENTAL OR OTHERWISE, DIRECT OR INDIRECT, WHETHER PAST, PRESENT OR FUTURE, WHETHER IN THIS JURISDICTION OR ANY OTHER WHICH YOU, YOUR SUCCESSORS AND/OR ASSIGNS, MAY HAVE AGAINST GREENROAD, INCLUDING GREENROAD’S AFFILIATES, PREDECESSORS, SUCCESSORS AND ASSIGNS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, AND ANYONE ACTING ON THEIR BEHALF, WHETHER CURRENT, PAST OR IN THE FUTURE (THE “RELEASED PARTIES”), UNDER ANY AGREEMENT BETWEEN GREENROAD AND YOU AND/OR APPLICABLE LAW IN CONNECTION WITH THE ACCIDENT AND GREENROAD’S ASSISTANCE (THE “RELEASED MATTERS”). YOU HEREBY FURTHER IRREVOCABLY COVENANT TO REFRAIN FROM, SUING, COMMENCING, INSTITUTING OR CAUSING TO BE COMMENCED, ANY CLAIM, ACTION, PROCEEDING, CHARGE, COMPLAINT, OR INVESTIGATION OF ANY KIND WHATSOEVER AGAINST GREENROAD AND/OR ANY OF THE RELEASED PARTIES, IN ANY FORUM WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY ADMINISTRATIVE AGENCY), IN THIS JURISDICTION OR ANY OTHER THAT ARISES OUT OF, RELATES IN ANY WAY TO, OR IS BASED UPON, ANY OF THE RELEASED MATTERS.
4.5. GREENROAD, ITS AFFILIATES, LICENSORS, VENDORS AND SUPPLIERS’ ENTIRE LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, IN TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY FOR ALL CLAIMS RELATING TO THIS AGREEMENT AND ITS PERFORMANCE, SHALL BE LIMITED IN AGGREGATE TO THE FEES ACTUALLY RECEIVED BY GREENROAD PURSUANT TO THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIMS.
4.6. IN NO EVENT UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, IN TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY SHALL GREENROAD ITS AFFILIATES, LICENSORS, SUPPLIERS AND VENDORS BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES.
4.7. GreenRoad shall indemnify You from and against any third party liabilities, losses, damages, claims, suits, and expenses, including reasonable legal expenses, of whatever kind and nature (“Losses”), awarded in a final judgment, incurred by or asserted against You relating to or arising out of any third party claim brought against You alleging that the Service used as contemplated by this Agreement violates any Intellectual Property Rights of any third person. This Section states your sole and exclusive remedy and GreenRoad’s entire liability regarding infringement of a third party’s Intellectual Property Rights. GreenRoad shall have no obligation to defend and shall not be liable for any infringement claim to the extent caused by (a) a modification to the Service or the Software by any third party, other than GreenRoad and its suppliers and vendors; (b) use of the Service or the Software in combination with other products not provided by or through GreenRoad; (c) your failure to use updated or modified Service or Software provided by GreenRoad to avoid infringement; or (d) unauthorized use of the Service or the Software by You or by any third party on your behalf in violation of the terms of this Agreement.
4.8. You shall indemnify GreenRoad, its owners, managers, affiliates, officers, directors, employees, licensors, suppliers and vendors from and against any and all Losses imposed upon, incurred by or asserted against GreenRoads owners, managers, affiliates, officers, directors, employees, licensors, suppliers and vendors relating to or arising out of a claim (i) due to your breach of this Agreement; (ii) alleging that GreenRoad’s use of the Customer Data, violates the Intellectual Property Rights, privacy or publicity rights of, or has caused harm to, any third party (including, without limitation, any User); (iii) any death, property or personal injury; (vi) with any of the Released Matters; and/or (v) with any third party claim against GreenRoad and/or Released Parties arising from or connected with the Accident.
4.9. The indemnity obligations set forth in this Section 4 are contingent upon (a) the indemnified party giving prompt written notice of any claim subject to indemnification under this Agreement, (b) the indemnified party allowing the indemnifying party the sole control of the defense and related settlement negotiations for such claim; and (c) the indemnified party providing reasonable assistance and cooperating in the defense and settlement negotiations as requested by the indemnifying party and at the indemnifying party’s expense.
5. DELIVERY AND PAYMENT; INSALLATIONS; TAXES
5.1. You shall pay the fees set forth in the Order Form. The first invoice shall be issued to You upon the earlier of: (i) fourteen (14) days from the execution of this Agreement or (ii) delivery of your users. Payment shall be due within fourteen (14) days thereof. In the event of any conflict between the quote and this Agreement, this Agreement shall govern. GreenRoad may, at its sole discretion, increase the fees, from time to time. All payments shall be made regardless of use. You shall within seven (7) days of the execution of this Agreement provide GreenRoad with all information as requested by GreenRoad such as PO number, IRN, etc.
5.2. Fees are non-refundable and non-cancelable. Payments which are not received when due shall bear interest on the outstanding amount at the lower of the maximum rate permitted by law or 1½% per month commencing with the date the payment was due.
5.3. All fees and expenses are payable in the currency set forth in the Order Form and You shall be responsible for paying all applicable sales, use, excise, withholding, import or export, bank fees, value added or similar tax or duties or levies of any nature, and any other tax not based on the income received by GreenRoad. You shall bear the costs and expenses incurred in the course this Agreement
6. CONFIDENTIALITY AND DATA PROTECTION
6.1. By virtue of this Agreement, each party may have access to the Confidential Information of the other party. The parties expressly acknowledge that the Customer Data shall be governed by Section 4. Each party agrees to keep confidential all Confidential Information disclosed to it by the other party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement. This Section 6 shall not apply to anything which: (i) is or becomes (through no improper action or inaction by the receiving party) generally available to the public; (ii) was in the receiving party’s possession or known to it prior to receipt from the disclosing party; or (iii) was rightfully disclosed to the receiving party by a third party; or (iv) is required to be disclosed by a subpoena, request for documents, or other validly issued judicial or administrative process, provided that the party so required promptly notifies the other party of the receipt of process and permits the other party a reasonable opportunity to respond to such process; or (v) the receiving party has independently developed, without breach of this Agreement and/or any use of the Confidential Information.
8. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall remain in effect through the initial term set forth on the Order Form (the “Initial Term”) unless earlier terminated as set forth below. This Agreement shall renew automatically for successive one-year periods at GreenRoad’s Service fees in effect at the time of each such renewal, until terminated upon one party giving the other at least ninety (90) days written notice prior to the expiry of the renewal period then in effect, to become effective at the end of the then current term (collectively, the Initial Term and all renewal periods shall be the “Term”). Either party may terminate this Agreement upon notice to the other party if the other party materially breaches this Agreement and such breach is not remedied within thirty (30) days of such notice (ten (10) days for non-payment). Either party may terminate this Agreement immediately upon notice if the other party becomes subject to any proceeding under any statute of any governing authority relating to insolvency or the rights to creditors which is not dismissed within sixty (60) days, or the equivalent occurs in any jurisdiction. Upon termination of this Agreement for any reason, all payments shall become due immediately, all licenses and rights granted to You shall immediately terminate and each party shall promptly return (or, if requested by the other party, destroy) all Confidential Information of the other party in its possession or under its control. Upon termination, You shall remove the Software from all hard drives, networks and other storage media, and destroy all copies of the Software in your possession or under your control. Upon GreenRoad’s request, You shall within three (3) days certify destruction of all full or partial copies of the Software, documentation and related materials provided by GreenRoad. Sections 1, 2.3, 2.4, 3, 4, 5, 6, 7, 8, 9 and 10 shall survive termination in perpetuity of this Agreement in accordance with their terms.
9. THIRD PARTY COMPONENTS
The Services and/or Software may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components“). Your right to use such Third Party Components as part of, or in connection with the Services and/or Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components contained therein or related thereto as set forth in the User manual. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. You hereby agree to such terms associated with the Third Party Components.
10.1. GreenRoad shall not be liable for any delay or failure in performing any of its obligations under this Agreement if such delay or failure is caused by circumstances outside the reasonable control of the party concerned. The Service/Software may be subject to limitations, unavailability, delays and other problems inherent in the use of the internet, mobile telephone networks and electronic communications.
10.2. GreenRoad may reference your status as a user of the GreenRoad Service/Software, in marketing materials and in sale presentations.
10.3. You may not assign or transfer any of your rights or obligations under this Agreement in whole or in part without GreenRoad’s prior written consent. GreenRoad may freely assign, transfer and sub-contract this Agreement and any or all of its rights and obligations herein.
10.4. You acknowledge and agree that GreenRoad has the right, at any time and for any reason, to redesign or modify the GreenRoad IPR and other elements or features of the Services/Software or any part thereof;
10.5. If any provision of this Agreement is held to be invalid or unenforceable, the parties shall substitute an enforceable provision that preserves the original intent and economic positions of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
10.6. This Agreement forms the entire understanding between the parties in respect of the matters dealt within, and supersedes all previous agreements, understandings, proposals and negotiations between the parties.
10.7. No provisions of this Agreement is intended or shall be construed to confer upon or give to any person or entity other than You and GreenRoad any rights, remedies or other benefits under or by reason of this Agreement.
10.8. GreenRoad’s failure to enforce any rights granted hereunder or to take action against you in the event of any breach hereunder shall not be deemed a waiver by GreenRoad as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
10.9. All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.10. This Agreement shall be governed by the laws of the State of Texas, USA, without regard to its conflicts of laws principles. Any dispute arising under this Agreement will be resolved in, and the parties submit to the exclusive jurisdiction of the appropriate courts in the State of Texas, USA.
10.11. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than You and GreenRoad any rights, remedies or other benefits under or by reason of this Agreement.
10.12. If You are an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, then use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and accompanying documentation, is restricted in accordance with FAR 12.212 and DFARS 227.7202, and by a license agreement. The contractor/manufacturer of certain spatial maps included in the Service is NAVTEQ North America, LLC, 425 West Randolph, Chicago, IL 60606, USA and the geocodes for input addresses are ©2014 by NAVTEQ ALL RIGHTS RESERVED. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that the Service is a trade secret and a proprietary commercial product and not subject to disclosure.
10.13. You hereby acknowledge that (i) GreenRoad holds a non-exclusive sublicense from the United States Postal Service® to publish and sell ZIP+4® information. “©United States Postal Service® 20XX, and that prices are not established, controlled or approved by the United States Postal Service®, (ii) the following trademarks and registrations are owned by the USPS: United States Postal Service®, USPS, and ZIP+4, and (iii) the Service includes information taken with permission from Canadian authorities, including © Her Majesty the Queen in Right of Canada, © Queen’s Printer for Ontario, © Canada Post Corporation, GeoBase ®, © Department of Natural Resources Canada.