THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY ACCESSING OR USING THE HOSTED PLATFORM AND/OR PLACING AN ORDER FOR USE OF THE SERVICES PROVIDED BY GPS, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS OF SERVICE. YOU AFFIRM THAT IF YOU ACCESS THE HOSTED PLATFORM OR PLACE AN ORDER FOR SERVICES ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN SERVICES FROM THIS PLATFORM IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
By using the Hosted Platform and/or by clicking on “Continue to Site” when this option is made available to you, you acknowledge and agree to be bound and abide by these Terms of Service which apply to your subscription of use of services provided by this Hosted Platform. You also acknowledge and agree to be bound and abide by the GPS Privacy Policy found at https://gpsweb.pro/ and the GPS Copyright Policy found at https://gpsweb.pro/, all of which are incorporated herein by reference as if fully set forth herein.
DEFINITIONS
Unless otherwise defined herein, the following terms shall have the meanings set forth below:
a. "Account” means the account(s) created by Customer, via the Hosted Platform, to access the Customer Data.
b. “Affiliate” means an entity other than Customer that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the Customer. “Control” means: (i) the ownership of, or power to vote, more than 50 percent of the outstanding shares of any class of voting security of an entity; (ii) the control in any manner over the election of a majority of the directors or of individuals exercising similar functions; or (iii) the power to exercise controlling influence over the management of an entity.
c. "Agreements” means these Terms of Service, the Order Form, the GPS Privacy Policy, and the Copyright Policy.
d. “Automatic Renewal Period(s)” means the period of time following the expiration of the Initial Term, or then-current Automatic Renewal Period, that is equal to the length of the Initial Term or then-current Automatic Renewal Period.
DEFINITIONS (continued)
e. "API Key” means an API key for the GPS Software that Customer may use or share with a third party to access, collect, and use the data collected from the GPS Hardware via the GPS Software and provided to the Customer.
f. “Authorized User” means Customer, Customer’s employees, agents, Affiliates, contractors, or servants whom Customer authorizes to use the GPS Software on Customer’s behalf.
g. “Confidential Information” means any technical, financial, or business information disclosed by one party to the other party that: (i) is marked or identified as “confidential” or “proprietary” at the time of such disclosure; or (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential, proprietary, business, financial or technical information of a party communicated to the other party in connection with the services contemplated herein, including but not limited to the Intellectual Property of GPS, intellectual property of the Customer, plans, designs, costs, prices, clients, names, finances, marketing plans, business opportunities, personnel, partners, customers, research, development, and/or know-how.
h. "Customer” or “you” means the company or legal entity for which you are accepting these Terms of Service and its Affiliates, if any, who enter into Order Forms.
i. “Customer Information” means any and all data and information the Authorized Users upload, transmit, generate, or submit to the GPS Software.
j. “Customer Data” means the Customer-specific data captured by Customer’s use of the installed GPS Hardware and GPS Software, data submitted by Customer or by a third party on behalf of Customer in the GPS Software and Hosted Platform, and the analysis, reports, and alerts generated by the Products containing such data. For clarification, Customer Data does not include any GPS Software.
k. “GPS Protected Information” means the Intellectual Property, GPS Hardware, GPS Software, Hosted Platform, Marks, and any other property of the GPS Hardware, GPS Software, and Hosted Platform.
l. “GPS Hardware” means the onboard event recorder and accessories and any improvements, developments, modifications, patches, updates, and upgrades thereto that GPS develops or provides to Customer pursuant to an Order Form.
m. "GPS Software” means the software created, owned, or operated by GPS and any improvements, developments, modifications, patches, updates, and upgrades thereto developed or provided by GPS used in conjunction with the GPS Hardware and Hosted Platform to provide the Customer Data.
n. "Hosted Platform” means the cloud-based software platform, including the interface, accessed online by Customer to create an Account to access the Customer Data.
o. "Initial Term” means the period of time beginning on the License Start Date and continuing for the length of time as stated on the Order Form prior to any Automatic Renewal Periods or other renewal period(s) agreed to by the parties.
p. “Intellectual Property” includes, but is not limited to, copyright rights (including rights to audiovisual works), moral rights, patent rights (including patent applications and disclosures), know-how, rights of priority, trademark rights, Marks, and trade secret rights recognized in any country or jurisdiction in the world related to the GPS Hardware, GPS Software, or Hosted Platform. This definition is meant to be interpreted broadly and shall include those property rights that have not yet been perfected or registered.
DEFINITIONS (continued)
q. “Intellectual Property Rights” means intellectual property or proprietary rights, including but not limited to Marks, copyright rights (including rights to audiovisual works), moral rights, patent rights (including patent applications and disclosures), know-how, rights of priority, trademark rights, and trade secret rights recognized in any country or jurisdiction in the world as related to the Intellectual Property. This definition is meant to be interpreted broadly and shall include those property rights that have not yet been perfected or registered.
r. “License Period” means the period of time beginning on the License Start Date and including any and all Automatic Renewal Periods or other renewal period(s) agreed upon by the parties.
s. "License Start Date” means the day the GPS Hardware arrives onsite to the Customer.
t. “Marks” means trademarks, trade names, service marks, logos, and/or service names used to identify GPS or its products and services.
u. “Non-GPS Product(s)” means any and all products, services, websites, applications, services provided by the Customer or a third party; services that interoperate with the GPS Software; websites that link with the GPS Software; and any applications or services available from an online marketplace that utilize or interact with the GPS Software. Non-GPS Products do not include GPS Hardware, GPS Software, or the Hosted Platform.
v. “Order Form” means the document completed by the Customer or Affiliate stating the Products purchased and used pursuant to this Terms of Service and other Agreements.
w. "Products” means the GPS Hardware, GPS Software, and Hosted Platform. The term “Products” does not include Non-GPS Products.
x. “Vehicle” means any vehicle in which any GPS Hardware is installed.
AGREEMENT TO TERMS OF SERVICE DEFINITIONS (continued)
Customer accepts and agrees to be bound to the terms of this Terms of Service (the “Terms of Service”) and the Agreements upon the earlier of the Customer indicating its acceptance of the Agreements within the GPS Software and/or Hosted Platform; the Customer’s execution of an Order Form or other agreement that incorporate these Terms of Service; the Customer entering into an agreement with GPS, a GPS reseller, or any other entity or individual for the purchase of Products or under which Products are made available to you; the Customer purchasing the Products from GPS through any other means or process; or by the Customer otherwise accessing and/or using the Products. If the Customer or Authorized User does not agree to these Terms of Service or is not authorized to access and/or use the Products, neither the Customer nor its Authorized User shall access or use the Products. If an Authorized User is accessing and/or using the Products on behalf of a company (such as the employer) or other legal entity which is the Customer of GPS, the Authorized User agrees to this Terms of Service on behalf of such Customer, and the Authorized User represents and warrants that the Authorized User has the authority to bind such Customer to this Terms of Service. If Customer has entered into a separate contract with GPS with respect to its purchase of Products or under which Products are made available to Customer and such agreement specifically states the terms therein shall govern any conflict with these Terms of Service, then, and only then, to the extent there is an express conflict between the terms in the separate agreement with GPS and these Terms of Service, the terms of the separate agreement with GPS shall control.
AGREEMENT TO TERMS OF SERVICE DEFINITIONS (continued)
In the event of conflict between these Terms of Service, the Order Form, the GPS Privacy Policy, and the Copyright Policy, the order of control shall be these Terms of Service, the Order Form, the GPS Privacy Policy, and the Copyright Policy.
Except with the prior written consent of GPS, Customer, Affiliates, and Authorized Users may not use the Products if such is a competitor of GPS, as determined in the sole and absolute discretion of GPS.
CHANGES TO THE TERMS OF SERVICE
GPS may revise and update these Terms of Service from time to time in its sole discretion. All changes are effective immediately upon accessibility of the revised terms, and will apply to all access to and use of the Products thereafter. However, any changes to the dispute resolution provisions set forth herein will not apply until actual notice of same to the Customer.
Customer’s and Authorized User’s continued use of the Products and Hosted Platform following the posting of revised Terms of Service deems acceptance and agreement to such changes. Customer and any Authorized User are expected to check the Terms of Service prior to accessing the Hosted Platform.
LICENSE
Subject to the terms and conditions stated herein in these Terms of Service and the Order Form between GPS and Customer, GPS grants Customer a non-sublicensable, non-exclusive, non-transferable, limited, and revocable license (the “License”) to use and access the GPS Software and Hosted Platform for the License Period or earlier termination in accordance with these Terms of Service. The License is only valid for use with the specific GPS Hardware ordered via the Order Form. GPS reserves the right to audit Customer’s use of the Products and to limit Customer’s access thereto if such use by the Customer is beyond the scope of the applicable License as set forth herein and the Agreements. In addition to any other fees, charges, or other amounts owed by Customer to GPS, GPS reserves the right to charge Customer for any use beyond the applicable scope of the License at the then-current prices and Customer agrees to timely payment of such amounts. During the License Period, Customer may not reduce the amount of GPS Hardware purchased by Customer pursuant to any Order Form or other purchase agreement with GPS and may not reduce, modify, or alter its License unless otherwise agreed to prior in writing by GPS.
The License automatically renews for an Automatic Renewal Period following the Initial Term and for any Automatic Renewal Periods thereafter unless Customer provides written notice to GPS of Customer’s intent to not renew at least ninety (90) days prior to the expiration of the Initial Term or then-current Automatic Renewal Period.
USE OF THE PRODUCTS
Customer represents and warrants that the Authorized Users will be at least eighteen (18) years or older. Additionally, the Customer agrees and acknowledges, and is wholly responsible for advising the Authorized Users, that GPS and Customer could access, disclose, restrict, and remove information from the Account at any time and without notice. The GPS Privacy Policy governing the use of the Products is a separate agreement, and by using the Products, Customer acknowledges it reviewed a copy of the Privacy Policy, informed the Authorized Users of same, and hereby accepts the terms therein.
The Products may only be used in accordance with the Order Form and these Terms of Service. Customer is responsible for the use of the Products through its Account, including any use of the Products by its Authorized Users. Customer is responsible to (a) obtain consents, approvals, and/or authorizations from Authorized Users and/or third parties that are necessary for GPS to collect the Customer Data; (b) ensure no Customer Data infringes upon or violates any Authorized User’s or other individual’s or entity’s intellectual property rights, privacy, publicity or other proprietary rights; (b) comply with any laws necessary to allow the operation of the GPS Software and Hosted Platform and collection of Customer Data, and (c) permit GPS to process, store, and transfer Customer Data; and (d) adhere to all applicable laws and regulations in the conduct of its business in relation to GPS and its receipt and use of the Products. GPS will provide the network connection between the GPS Hardware and the Hosted Platform; however, Customer is solely responsible for its own software, network and internet connection costs related to its use of the Products, including with respect to any firmware or other software updates released by GPS, including but not limited to mobile phone or mobile network data usage fees and applicable roaming charges which are provided by Customer’s or Authorized User’s mobile network provider under Customer’s or Authorized User’s separate agreements with those providers. GPS is not responsible for these data services or any related costs. Customer is responsible for maintaining the minimum required versions of operating systems to operate the GPS Software and Hosted Platform. Customer is solely responsible for any use made of the GPS Software and Hosted Platform and for any data received through the GPS Software and Hosted Platform. In particular, although the GPS Software is intended to provide Customer with information that can help monitor and improve the efficiency, safety, organization, monitoring, visibility, and compliance with federal and state regulations related to Customer’s business operations, Customer is solely responsible for all such items, as well as all other aspects of Customer’s operations and business, including but not limited to its internal management and administration of the Products. Customer acknowledges that the Products do not constitute advice or recommendation as to Customer’s business operations, and further acknowledges that the Products alone will not improve efficiency, safety, or compliance.
Customer assumes all responsibility for compliance with all applicable laws and regulations, including but not limited to, any audio or video recording laws related to the use of the Products. Notwithstanding anything contained herein, Customer maintains the sole responsibility to comply with applicable laws, including but not limited to compliance standards for IFTA filing and FMCSA hours of service of its drivers.
USE OF THE PRODUCTS (continued)
The Products are strictly for use by Customer and its Authorized Users. Customer shall not allow third parties to use the Products or the Account except as set forth in the Agreements, and Customer is solely responsible for protecting and securing credentials and information of the Account, Products, and the Authorized Users from unauthorized use. Customer is solely liable and responsible regarding its sharing of the API Key with third parties and Authorized Users. Customer shall notify GPS immediately if it becomes aware of a threatened or actual breach of security related to the Products or Customer’s Account.
Customer will not (and will not allow third parties to): (a) reverse engineer, decompile, disassemble, decipher or otherwise attempt to discover the source code or underlying ideas or algorithms of the GPS Software; (b) modify or create derivative works based on the GPS Software; (c) sell, resell, license, copy, rent, lease, distribute, time-share the GPS Software or otherwise use the GPS Software for the benefit of a third party; (d) remove or alter proprietary notices from the GPS Software, (e) use the GPS Software to create any competitive or other product or service; (f) use the GPS Software for the purpose of benchmark testing or to research the features and functions of the Service; or (g) sell, modify, create derivative works based on, publicly perform, publicly display, or distribute the Customer Data outside of the GPS Software, except for regulatory compliance purposes or otherwise with the prior written consent of GPS.
RIGHTS OF GPS
GPS is not obligated to track the usage or activity of the GPS Software and Hosted Platform; however, GPS maintains the right to do so to operate the GPS Software and Hosted Platform, to ensure compliance with these Terms of Service, and to comply with applicable law and other legal requirements.
GPS is not obligated but maintains the right to remove or disable access to the GPS Software and Hosted Platform, at any time, with or without prior notice to Customer, including without limitation if GPS reasonably believes Customer’s use of the Products to be in violation of these Terms of Service, the Agreements, or applicable law. GPS reserves the right to withdraw or amend the Hosted Platform, and any service or material GPS provides on the Hosted Platform, in its sole discretion without notice. GPS will not be liable if for any reason all or any part of the Hosted Platform is unavailable at any time or for any period. From time to time, GPS may restrict access to some parts of the Hosted Platform, or the entire Hosted Platform, to users, including Authorized Users.
Customers and Authorized Users are responsible for:
· Making all arrangements necessary to access the Hosted Platform and
· Ensuring that all persons who access the Hosted Platform through Customer’s or Authorized User’s internet connection are aware of these Terms of Service and comply with them.
RIGHTS OF GPS (continued)
Customer acknowledges that GPS does not screen Customer Information or any content that Customer or any third party makes available through the GPS Software or Hosted Platform, but GPS maintains the right to access or review same without notice. Customer acknowledges any information related to the Account and Hosted Platform, Customer Information, and Customer Data may be accessed and/or reviewed by GPS for quality improvement, training purposes, and/or industry trends. GPS has the right, but not the obligation, to refuse, move, or delete any content that is made available via the GPS Software or Hosted Platform at any time, without reason, and without notice.
CUSTOMER DATA
Customer Data is accessible via the Customer’s Account on the Hosted Platform. Customer owns all Customer Data and is able to download and save the Customer Data. Customer Data is available to Customer for fifteen (15) days from the date such Customer Data is recorded. For convenience, Customer will have the option to opt-in to permit the GPS Software or Hosted Platform to automatically notify insurance carriers of record in the event of an accident or insurable-related event detected by the GPS Hardware.
Notwithstanding Customer’s ownership of the Customer Data, Customer grants GPS a non-exclusive, transferable, irrevocable, sub-licensable, worldwide, royalty-free license: (a) to collect, use, copy, share, distribute, modify, and display the Customer Data, and to create derivative works based on the Customer Data in order to provide, analyze, support, operate, and improve the Products and GPS’ services and to develop new products and services; (b) in connection with quality improvement, marketing, training purposes, audits, statistical reporting and use, and industry study and analysis of data and trends; (c) to share the Customer Data with third parties, including without limitation affiliates, subsidiaries, vendors, insurance companies, and service providers; and (d) as required by law or in response to a request from law enforcement authorities, made in connection with a subpoena or other similar demand, made in connection with a contemplated merger, acquisition or similar transaction, or for any other lawful purpose. GPS may submit Customer’s contact information and billing information related to the timeliness of Customer’s payments to credit rating, credit reporting, or similar agencies. GPS may disclose Customer Information and Customer Data and other information if required by law, regulation, or legal process. In such an event, GPS will make reasonable efforts to provide Customer with reasonable notice of the required disclosure, if so permitted, and reasonably assist Customer, at Customer’s sole cost, to contest the disclosure.
CUSTOMER DATA (continued)
The foregoing right of GPS to use Customer Data shall survive the termination of the License. GPS will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Customer acknowledges that some information may not be exportable via the Hosted Platform or the API Key. Upon termination or expiration of the License, the applicable Customer Data may be immediately deleted.
INTELLECTUAL PROPERTY RIGHTS AND LICENSE
The Hosted Platform and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by GPS, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
These Terms of Service permit Customer to use the Hosted Platform for Customer’s use only as permitted herein and not for any illegal purposes.
If Customer or its Authorized Users print, copy, modify, download, or otherwise use or provide any other person or entity with access to any part of the Hosted Platform in breach of the Terms of Service, Customer’s right to use the Hosted Platform will cease immediately and Customer must, at GPS’ option, return or destroy any copies of the materials Customer or its Authorized Users have made. No right, title, or interest in or to the Hosted Platform or any content on the Hosted Platform is transferred to Customer, and all rights not expressly granted are reserved by GPS. Any use of the Hosted Platform not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
GPS HARDWARE
• Installation. Customer is responsible for installation of the GPS Hardware in accordance with the Hardware manufacturer’s instructions. Notwithstanding, GPS offers Customer the option of a third-party installation provider (“Third-Party Installer”) to install the GPS Hardware pursuant to prices stated on the Order Form. GPS is not liable for any expense, cost, or damages related to, or resulting from, the GPS Hardware, including the installation, use, or operation thereof, including as related to the Vehicle or any effects thereon. of same. Customer is solely responsible to determine the compatibility of the GPS Hardware and GPS Software for the intended use. Customer, on behalf of itself and its insurers, waives any and all subrogation rights it may have against GPS for injury to any person or damage to property, including injury to person or property damage that is caused by or results from installation of the GPS Hardware by Customer, Authorized User, or Third-Party Installer.
• Overage Charges. Each GPS Hardware maintains a data allowance of two (2) gigabytes (the “Data Allowance”). Any use over the Data Allowance (the “Overage”) will be charged to Customer monthly at the rate charged to GPS by the service provider for the Overage. Thus, the charge for the Overage will vary based on the cost from the service provider. The current charge for Overage is $0.015/MB; however, this amount is subject to change without notice due to any change by the service provider. The charge for Overage shall be in addition to amounts owed by Customer.
WIRELESS ACCESS
GPS will provide cellular and wireless connectivity for the GPS Hardware via a Wireless Carrier, selected solely by GPS. Use of the cellular and wireless connectivity is subject to the Data Allowance. If using wireless access to the Hosted Platform, including without limitation a Wi-Fi Hotspot, Customer acknowledges and agrees that there exists inherent security and confidentiality risks in accessing or transmitting information through same. Security issues may include, but are not limited to, interception of transmissions, loss of data, and the introduction or viruses and other programs that can damage computers, other devices, or other networks. Customer agrees to ensure that any devices connected to any wireless router, access point, or Wi-Fi Hotspot maintain reasonable technical safeguards implemented to protect against the propagation of any malicious or unauthorized software code, or application across the wireless network. Accordingly, Customer agrees that GPS will not be liable for any interception of transmissions, computer worms or viruses, loss of data, file corruption, hacking or any other damages to Customer’s and/or Authorized Users’ computers or other devices that result from the transmission or download of information or materials.
Whether Customer, Authorized User, or GPS uses a third-party provider for cellular and wireless connectivity, including Wi-Fi Hotspot connectivity (“Wireless Carriers”), GPS cannot and does not guarantee uninterrupted or continuous service or specific area coverage and GPS is not responsible for downtime or loss of use of the GPS Software caused by the Wireless Carrier’s lack of provision of such GPS Software. Similarly, in the event of an agreement between GPS and a Wireless Carrier, Customer maintains no contractual relationship with the Wireless Carrier, Customer is not a third-party beneficiary of any agreement between GPS and the Wireless Carrier, the Wireless Carrier has no liability for any reason or no reason to Customer, and the Wireless Carrier does not, and cannot, guarantee the security of transmissions and is not liable for same.
CUSTOMER AND AUTHORIZED USER(S) UNDERSTAND AND AGREE THAT (1) CUSTOMER HAS NO CONTRACTUAL RELATIONSHIP WITH THE WIRELESS SERVICE CARRIER, (2) CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN GPS AND THE WIRELESS SERVICE CARRIER, (3) THE WIRELESS SERVICE CARRIER HAS NO LIABILITY OF ANY KIND TO CUSTOMER OR AUTHORIZED USERS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (4) MESSAGES OR DATA TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911 CALLS MAY NOT BE COMPLETED, AND (5) THE WIRELESS SERVICE CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE GPS SOFTWARE.
FEES AND PAYMENT
Fees for the Products shall be set forth on an Order Form, which shall be incorporated herein. All payments due to GPS shall be in U.S. Dollars. Customers are responsible for providing complete and accurate billing and contact information to GPS and notifying GPS of any changes. All fees and other charges paid to GPS under the Agreements are non-refundable. Customer is responsible for timely payment of all amounts due, regardless of whether all or any portion of the amounts owed to GPS under the Agreements are paid by any other individual or entity. The obligation of Customer to make timely payments is not affected whether amounts owed by Customer are paid in whole or in part by a third-party, including Customer’s subsidiaries, affiliates, or insurers. In such circumstances, Customer remains liable in accordance with the terms of the Agreements.
TAXES
Customer is responsible for all taxes related to the GPS Software, except those related to the business of GPS. Sales tax for the GPS Software may apply unless provided with a valid tax exemption certificate authorized by the appropriate taxing authority.
LATE PAYMENTS
In each instance any payment is received between six (6) days and fifteen (15) days following the due date of same, such outstanding amount is subject to a late payment fee of five percent (5%) of the outstanding balance. An additional five percent (5%) late payment fee will be assessed in each instance any payment is received from the sixteenth (16th) day through the twenty-ninth (29th) day following the due date. In each instance any payment remains outstanding on or after the thirtieth (30th) day past the due date, GPS, in its sole discretion, may terminate the License, deem such a material breach of this Agreement, and seek remedies as stated herein. Customer is responsible for all reasonable expenses, including attorneys’ fees, incurred by GPS due to untimely payments and collection of same.
COMMERCIAL PURPOSES
Except as expressly set forth in the Agreements, Customer may only use the Products in Customer’s normal business purposes, and shall not use the Products for any personal, individual, or consumer purposes, including but not limited to the sale of the Products or bulk reproduction or distribution of the Products in any form.
CUSTOMER PERFORMANCE OBLIGATIONS
Customer shall be responsible to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Products is granted including, in particular, any limitations on access or use of the Products as set forth herein or in the Agreements.
EARLY TERMINATION
Either party may terminate the License and any applicable access to the Products if (a) the other party is in material breach of these Terms of Service or the other Agreements and fails to cure such material breach within fifteen (15) days after receipt of written notice of such material breach, or by the thirtieth (30th) day of non-payment of any amount due with no written notice of such material breach necessary or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. In any such scenario, the non-breaching party may seek remedies, including the amounts owed for the License Period, via the terms stated herein.
Notwithstanding the prior paragraph, GPS may terminate the License with or without notice to Customer and without liability if, in GPS’s sole determination, GPS reasonably believes Customer violated any law applicable to the Products or the Agreements. In any such scenario, GPS may seek remedies, including the amounts owed for the License Period, via the terms stated herein. Additionally, GPS may terminate these Terms of Service, Order Form, or access to the Products at its sole discretion upon notice to Customer. Only if the termination by GPS is for its own convenience, GPS will provide Customer with a refund of a pro-rata portion of the amounts paid by Customer from the date of termination through the end of the License Period.
If Customer chooses to discontinue, cancel or terminate the License prior to the termination or expiration of the License Period, Customer must provide at least thirty (30) days’ written notice. As the termination is without cause, GPS will invoice Customer, and Customer will owe, for any balance due for the remainder of the License Period, including for any and all fees related to the replacement and restoration of the Products.
Upon termination for any reason or no reason, Customer continues to be bound by applicable provisions of this Terms of Service and the Agreements. Customer is fully responsible for notifying reporting requirements.
LIMITATIONS ON WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THIS TERMS OF SERVICE AND THE INCORPORATED AGREEMENTS, GPS AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PRODUCTS AND ANY DATA OR OUTPUT THEREFROM, AND (B) EXPRESSLY DISCLAIM ALL WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, AND NON-INFRINGEMENT; (II) ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE; (III) THAT THE PRODUCTS ARE COMPLETELY SECURE, ERROR-FREE OR UNINTERRUPTED OR ARE ACCURATE, COMPLETE, RELIABLE, OR SUITABLE FOR THE CUSTOMER; OR (IV) WITH RESPECT TO THE CONTENT OF THE PRODUCTS, INCLUDING BUT LIMITED TO ERRORS OR OMISSIONS CONTAINED THEREIN, LIBEL,
LIMITATIONS ON WARRANTIES (continued)
INFRINGEMENT OF RIGHTS OF PUBLICITY, PRIVACY, TRADEMARK RIGHTS, MORAL RIGHT, OR THE DISCLOSURE OF CONFIDENTIAL INFORMATION.
THE PRODUCTS AND CUSTOMER DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND GPS MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, TIMELINESS, OR TRUTHFULNESS OF SAME.
CUSTOMER ACKNOWLEDGES AND AGREES FOR ITSELF AND THE AUTHORIZED USERS THAT THE PRODUCTS ARE NOT A SUBSTITUTE FOR SAFE, CONSCIENTIOUS DRIVERS AND CANNOT COMPENSATE FOR A DRIVER THAT IS DISTRACTED, INATTENTIVE, OR IMPAIRED BY FATIGUE, DRUGS, ALCOHOL, OR OTHERWISE. THE DRIVER IS RESPONSIBLE TO AVOID AN ACCIDENT. CUSTOMER’S DRIVERS AND AUTHORIZED USERS SHOULD NEVER WAIT FOR ANY OF THE PRODUCTS TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT OR ANY VIOLATION OR TO DRIVE CAREFULLY ACCORDING TO THE APPLICABLE LAW. CUSTOMER ACKNOWLEDGES AND AGREES FOR ITSELF AND ITS AUTHORIZED USERS THAT USE OF THE PRODUCTS WHILE DRIVING IS INADVISABLE. DISTRACTED DRIVING IS DANGEROUS AND ILLEGAL IN SOME JURISDICTIONS.
GPS further expressly disclaims any warranty or representation to Authorized Users or to any third parties.
LIMITED LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, OR DISTRIBUTORS BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR BUSINESS, EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, LOSS OF USE, OR DAMAGES RESULTING FROM LOST DATA OR INABILITY TO USE DATA) ARISING FROM THIS TERMS OF SERVICE, IRRESPECTIVE OF WHETHER THE AFFECTED PARTY HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES.
LIMITED LIABILITY (continued)
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
NOTWITHSTANDING ANYTHING IN THIS AGREEEMNT OR ANY INCORPORATED DOCUMENTS TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, GPS’ MAXIMUM COLLECTIVE, AGGREGATE LIABILITY IS LIMITED TO THE AMOUNT CUSTOMER HAS PAID OR SHALL PAY FOR USE OF THE INDIVIDUAL AFFECTED PRODUCT UNIT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE PARTIES ENTERING INTO THIS TERMS OF SERVICE. THESE LIMITATIONS ARE NOT APPLICABLE TO ANY EXPRESS INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN AND ANY CUSTOMER PAYMENT OBLIGATIONS IN THE EVENT OF A BREACH OR EARLY TERMINATION BY CUSTOMER.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages or the limitation of duration of an implied warranty, so the limitation or exclusion herein may not apply to Customer. This warranty shall not be applicable to the extent that any provision of this warranty is prohibited by any federal, state, or local law, which cannot be preempted. Notwithstanding, This warranty provides Customer specific legal rights, and Customer may also have other rights, which may vary from state to state.
IFTA REPORTING
Customer accepts responsibility to ensure the accuracy and the suitability of the reports generated by the GPS Software before submitting them to any state or federal agency. GPS accepts no responsibility or liability for any setbacks, financial or otherwise, incurred by using the GPS Software. It is Customer’s and Authorized User’s sole responsibility to maintain compliance standards for IFTA filing purposes.
INDEMNIFICATION
Notwithstanding anything in this Terms of Service to the contrary, Customer shall indemnify, defend, and hold harmless GPS and its affiliates, officers, directors, employees, and agents (collectively, the “GPS Indemnified Parties”) from and against all liabilities, damages, losses, and costs and expenses, including settlement costs and reasonable attorneys’ fees, arising out of third party claims, suits, or proceedings arising out of (i) Customer’s, Authorized User’s or third parties’ (of which Customer authorized, permitted, or negligently failed to prevent) access to or use of the Account, GPS Hardware, GPS Software, and/or Hosted Platform; (ii) the Customer Information; (iii) Customer’s or Authorized User’s breach of this Terms of Service, or (v) negligent acts or omissions of Customer or Authorized Users (“Customer Claim”).
INDEMNIFICATION (continued)
GPS and Customer will control the defense, at the sole cost of Customer and with the final decision-making authority by GPS, of the Customer Claim, including appeals, negotiations, and any settlement or compromise. Customer’s obligation to indemnify and defend includes: (1) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of attorneys’ fees, courts costs, and other reasonable expenses, and (2) reimbursement of reasonable attorneys’ fees incurred before Customer assumed the defense along with GPS. GPS shall have the opportunity to review all decisions related to the defense of the Customer Claim prior to acting on same and is the sole decision-maker as to same.
CONFIDENTIALITY AND CONFIDENTIAL INFORMATION
GPS Confidential Information includes any information related to the Products, including the pricing and payment terms thereof, Hosted Platform, or customer, supplier, and partner lists, any data or information that GPS provides to Customer in the course of providing the Products to Customer. Confidential Information excludes information that: (i) is now or hereafter becomes generally known or available to the public, through no breach of the receiving party’s confidentiality obligations; (ii) was known, without restriction as to use or disclosure, by the receiving party prior to receiving such information from the disclosing party; (iii) is acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without use or knowledge of or reference to any Confidential Information of the disclosing party.
Except as otherwise ser forth in these Terms of Service or in the Agreements, Customer agrees: (i) to maintain GPS’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties (except for any Affiliates, employees, agents or third party service providers of Customer in performing under this Terms of Service under reasonable confidentiality obligations, or except as authorized by GPS); and (iii) not to use any Confidential Information for any purpose except as set forth in these Terms of Service or as authorized by GPS. Should Customer be required, under applicable law, rule, or regulation, or pursuant to the order of any court or governmental entity of legal process of any governmental entity of competent jurisdiction, to disclose Confidential Information of GPS that is in Customer’s possession, custody, or control, Customer shall use commercially reasonable efforts to: (i) give at least ten (10) days’ prior written notice of such disclosure to GPS; (ii) actively work and cooperate with GPS to limit such disclosure to the extent practicable; and (iii) actively work and cooperate with GPS to make such disclosure only to the extent so required.
Customer acknowledges damages for a breach of this section may be difficult to ascertain; therefore, in the event of a breach by a party of the provisions of this Confidentiality section, such party, in addition to any other available remedies, will be entitled to preliminary and permanent injunctive relief against any breach or threatened breach of the covenants contained in this section. Customer’s obligations under this section will survive the performance or any termination of this Terms of Service for three (3) years.
INFORMAL DISPUTE RESOLUTION
The parties agree to make a good faith attempt to informally resolve disputes (“Informal Dispute Resolution”). The parties shall provide written notice to the other party containing information of the claim and will attempt to resolve the claim through good faith discussion. If an Information Dispute Resolution is not attained within thirty (30) days, either party may commence proceedings in accordance with the below. Any and all causes of action related to these Terms of Service or and Agreements must be commenced within one (1) year of the accrual of the cause of action.
ARBITRATION
Nothing herein contained shall preclude GPS from commencing any action in any court having jurisdiction thereof with respect to any matter arising out of, relating to or pertaining to these Terms of Service or the Agreements. However at the sole option of GPS, any controversy, claim or dispute, whether in contract, tort or otherwise, arising out of, relating to or pertaining to these Terms of Service or the Agreements or the interpretation, breach, enforcement or subject matter thereof, that cannot be settled by mutual agreement of the parties may at the sole option of GPS: (i) be submitted to arbitration by one (1) arbitrator (unless the GPS determines to have multiple arbitrators) in Miami-Dade County, Florida, or such other location in the State of Florida chosen by GPS, conducted by the American Arbitration Association, in accordance with its Commercial Arbitration Rules then in effect or conducted by any other recognized arbitration association or entity in accordance with similar rules (“Arbitration”); or (ii) be determined through any alternative dispute resolution (“ADR”) procedure provided for under the laws of the State of Florida, with such ADR procedure to be selected by GPS. All claims for arbitration under these Terms of Service or the Agreements must be brought in the party’s individual capacity and not as a plaintiff or class member in any purported class, collective action, or representative proceeding. The arbitrator may not consolidate the claims, and may not otherwise preside over any form of a representative or class proceeding. Judgment upon any Arbitration award or ADR determination may be entered in any court of any state or county or application may be made to such court through judicial acceptance of the award or determination and on order of enforcement, as the law of the jurisdiction may require or allow. The Arbitration award or ADR determination shall be final and no appeal shall be taken by either party. The costs of any such Arbitration or ADR shall be borne equally by GPS and the Customer. GPS AND THE CUSTOMER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST EACH OTHER ON, OR IN RESPECT OF, ANY MATTER ARISING OUT OF, RELATING TO OR PERTAINING TO THESE TERMS OF SERVICE OR THE AGREEMENTS, OR THE INTERPRETATION, BREACH, ENFORCEMENT OR SUBJECT MATTER THEREOF.
INTEGRATION
The Order Forms and Agreements stated within this Terms of Service are incorporated herein by reference.
U.S. EMBARGO
Customer represents and warrants that Customer is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties. The Products may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction. Customer is responsible for compliance regarding Customer and the Authorized Users’ use of the Products. Customer will not permit anyone to use the Products from a U.S. embargoed country.
ASSIGNMENT AND TRANSFER
Customer may not assign or transfer its rights or obligations under these Terms or Service or the Agreements, by operation of law or otherwise, without the prior written consent of GPS. Any attempt to assign or transfer these Terms of Service, without such consent, will be null and void.
GOVERNING LAW
THE LAWS OF THE STATE OF FLORIDA SHALL GOVERN ALL QUESTIONS, DISPUTES OR CLAIMS, WHETHER BASED IN TORT, STRICT LIABILITY, CONTRACT OR EQUITY, ARISING OUT OF OR RELATING DIRECTLY OR INDIRECTLY TO THESE TERMS OF SERVICE OR THE AGREEMENTS, THE PERFORMANCE OR BREACH HEREOF, THE PARTIES’ RELATIONSHIP, OR TO THE INTERPRETATION, VALIDITY, ENFORCEMENT OR EFFECT OF THESE TERMS OF SERVICE OR THE AGREEMENTS, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES THEREOF. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THESE TERMS OF SERVICE AND THE AGREEMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF FLORIDA, VENUE IN MIAMI-DADE COUNTY, FLORIDA OR, AT THE SOLE OPTION OF GPS, IN ANY OTHER COURT IN WHICH GPS SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. CUSTOMER WAIVES ANY RIGHT IT MAY HAVE TO ASSERT LACK OF PERSONAM JURISDICTION, THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE (OR TO SEEK TO TRANSFER VENUE) TO THE EXTENT ANY ACTION OR PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION. GPS AND CUSTOMER AGREE THAT SHOULD ANY CONFLICT OR LITIGATION ARISE BETWEEN THE PARTIES, THE PREVAILING PARTY SHALL BE AWARDED REASONABLE ATTORNEY’S FEES AND COURT COSTS.
CONSTRUCTION AND INTERPRETATION
The language of this Terms of Service shall in all cases be construed simply, as a whole, and in accordance with its fair meaning, and not strictly for or against either party. Each party has been given the opportunity to independently review this Terms of Service with legal counsel and other consultants, and each party has the requisite experience and sophistication to understand, interpret and agree to the particular language contained herein. Accordingly, in the event of ambiguity or dispute regarding the interpretation of this Terms of Service , the drafting of the language of this Terms of Service shall not be attributed to either party.
FORCE MAJEURE
Neither party shall be liable in damages for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, Acts of God, government restrictions (including, but limited to, the denial or cancellation of any export or other necessary license), riots, fires, explosions, epidemics, pandemics, floods, wars, or insurrection, and such condition has an adverse effect on the party’s ability to perform its obligations hereunder, is not the result of the party’s negligence or fault. If the condition lasts for at least thirty (30) days, either party may terminate the Terms of Service via written notice, and any unperformed obligations pursuant to this Terms of Service may be cancelled.
ENTIRE AGREEMENT
This Terms of Service constitutes the entire agreement of the Parties with respect to the subject matter herein and supersedes all prior communications, understandings, and agreements relating to that subject matter, whether oral or written. No oral promises or statements have induced either party to enter into this Terms of Service.
AMENDMENT
No modification or claimed waiver of any provision of this Terms of Service shall be valid except by written amendment signed by authorized representatives of both parties.
SEVERABILITY
If any provision or provisions of the Agreements shall be determined by a court of competent jurisdiction or by any arbitration panel to be invalid, illegal, unenforceable, or in conflict with the law of any jurisdiction, the validity, legality, and enforceability of the remainder of such provision or provisions or the application of such provision or provisions to persons or circumstances other than those as to which it has been held invalid or unenforceable, shall not be affected thereby and each provisions of the Agreements shall remain in full force and effect to the fullest extent permitted by law. The parties further agree that if any portion of the Agreements, or any part thereof or application thereof, to any person or circumstance shall be finally determined by a court of competent jurisdiction or arbitration panel to be invalid or unenforceable to any extent, then such objectionable provision shall be deemed modified to the extent necessary so as to make it valid, reasonable and enforceable including without limitation.
WAIVER OF CONTRACTUAL RIGHT
Waiver of any provision of the Agreements shall not be deemed a waiver of any other provision in the Agreements, nor shall waiver of any breach of the Agreements be construed as a continuing waiver of other breaches of the same or other provisions of the Agreements.
NEGOTIATION AND AUTHORITY TO EXECUTE
This Terms of Service is the result of negotiation between the parties and, accordingly, shall not be construed more strongly for or against either party, regardless of which party was more responsible for the preparation of this Terms of Service or any portion thereof. Each individual signatory hereto warrants that he or she has the authority to execute this Terms of Service on behalf of his or her respective party and bind such party to same.
NOTICES
Customer agrees to notify GPS of any change to its contact information via email or phone within fifteen (15) days of such change. Email notices shall be deemed accepted upon reply by the receiving party confirming same. All notices to GPS shall be sent as stated below:
Phone Number: 305-455-4392
Email:
[email protected]