Darex Logistics Company INC (“Provider”) licenses or owns technology, which it has developed and makes commercially available to its users through web Application(s) and/or mobile services to assist in providing more efficient operations of truck and other vehicle fleets. In connection with the use of the Application(s) and the provision of Support, or the purchase or rental of Hardware (as defined below), the “Customer” hereby agrees to the terms of service and conditions contained herein (collectively, the “Terms of Service”).
THE CUSTOMER ACCEPTS THE TERMS OF SERVICE BY:
A) SIGNING THE ORDER FORM (SEE ATTACHED) WHICH REFERENCES THE TERMS OF SERVICE, OR
B) ACCEPTING THE TERMS OF SERVICE WITHIN Provider’s MOBILE APPLICATION, OR
C) DOWNLOADING, INSTALLING, EXECUTING, USING, ACTIVATING, OR OTHERWISE ACCESSING THE APPLICATION(S) OR HARDWARE APPLICATION(S) AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE,
AND THEREBY
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS OF THE TERMS INCLUDING ALL CONDITIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO COMPLY WITH AND BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING PROVIDER’S PRIVACY AND ANTI-SPAM POLICY LOCATED AT https://xeld.us/privacy-policy/, ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN PROVIDER AND THE CUSTOMER (“The Parties.”) THE ENTIRE AGREEMENT SUPERSEDES ALL PRIOR OR OTHER AGREEMENTS BETWEEN THE PARTIES ON THE SUBJECT MATTER HEREIN. IF, AFTER READING THE ENTIRE AGREEMENT INCLUDING THE TERMS OF SERVICE, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER WILL NOT USE, INSTALL, ACCESS OR ACTIVATE THE APPLICATION(S) OR HARDWARE. THE CUSTOMER MAY NOT ACCESS THE APPLICATION(S) IF IT IS A COMPETITOR OF PROVIDER OR ANY IF ANY OF THE CUSTOMER’S AFFILIATES IS A COMPETITOR.
1. DEFINITIONS
“Agents” includes but is not limited to employees, agents, consultants, contractors, representatives, directors, officers, shareholders, suppliers, or affiliates.
“Application(s)” include mobile and/or web Application(s) including software, system software,and related systems used to manage, process, report data, and interface with and manage Hardware, which may include materials owned by third parties pursuant to an agreement with Provider, as may be amended, enhanced, or modified at times by Provider.
“Confidential Information” is all data and information of a confidential and proprietary nature of a party, presented in writing or orally, relating to the business of a party or its affiliates in any way whatsoever, including, but not limited to, Intellectual Property, information and data relating to business operations, methods of operating, customer information and affairs, processes, personnel data, financial data, production data, scientific data, technical data, and information, formulae, strategies, studies, reports, and evaluations.
“Documentation” is any documentation, online user guides, and user and training materials with respect to the Product, provided by Provider and as may be amended from time to time.
“Fees” includes all amounts owing by the Customer to Provider, including without limitation, Subscription Fees;
“Hardware” is Provider’s proprietary Electronic Logging Device (ELD) for fleet operation, dispatch, and compliance, commercially known as “XELD”, to be used in connection with the Application(s), and includes “Rented Hardware.”
“Intellectual Property” is any and all intellectual property owned by Provider, its Confidential Information, the Application(s), Hardware, and Documentation, and all modifications, enhancements, corrections, and additions thereto, including, without limitation, all technical information, technical data, databases, inventions, products, data, algorithms, design, methods, knowhow, processes, copyrights, patents, trade secrets, software (including object code and source code), models, patterns, drawings, specifications, prototypes, discoveries, techniques systems, works of authorship, ideas, and concepts, and all intellectual property rights therein (whether or not patentable or registerable under copyright, trademark, trade secret or similar legislation or subject to analogous protection).
“Order Form” is an ordering document or online purchase specifying the Application(s) and/or Hardware to be provided to the Customer, including any addenda and supplements thereto, into which these Terms of Service are deemed incorporated.
“Personal Information” is any information relating to an identified or identifiable natural person as defined under applicable privacy laws.
“Product” is collectively the Application(s) and the Hardware.
“Support” is general maintenance services and technical support for the Product.
“Systems” is a third-party hosted facility and/or other system(s) used by Provider to host the Application(s) from time to time.
“Taxes” includes but is not limited to all sales, uses, value-added, or other taxes or duties, and any applicable export or import duties.
2. USE OF PRODUCT AND LICENSE
2.1 Use of Product. The use of mobile devices while operating motor vehicles is subject to generally applicable laws governing transportation, occupational health and safety, and other rules and regulations, and may result in charges, citations, fines or other legal proceedings. Such use may also expose the Customer to risk of accidents or death. Provider does not assume any liability or responsibility under this License or otherwise for any damages, losses or other claims resulting from use of the Product while driving a vehicle.
2.2 License Grant. Provider hereby grants to the Customer, solely for internal use by the Customer, a non-transferable, non-exclusive right and license to access and use the Application(s) (the “License”) during the TIME PERIOD (“TERM”), which may be made available to Customer through a mobile application or on-line at https://cloud.xeld.us/ (or such other URL as Provider may designate from time to time) and hosted on the Systems used by the Provider.
2.3 Changes to License. Provider reserves the right to modify and update the Terms at any time and without notice. Therefore, it is important that the Customer regularly review the Terms of Service to ensure updating as to any changes. By accepting these Terms of Service, the Customer is also agreeing to be bound at any time in the future by any future changes to the Terms of Service. To the extent that such changes are made to the License or to the Product, the Customer will be deemed to have accepted the modified terms at the time of acceptance and use of such update or upgrade to the License or Product.
2.4 Location-Based Information Acknowledgement and Acceptance. By accepting the License, the Customer acknowledges and consents to the creation, transmission, and storage of Global Positioning System (GPS) location information by the Application(s) via interaction between the GPS and the mobile devices on which Application(s) are installed. Provider will use reasonable commercial efforts to ensure the accuracy of GPS information and other location-based displays. As Provider is dependent on third-party hardware, software, and services for inputs to the GPS, Provider assumes no liability or responsibility in the event of inaccuracies of such information.
2.5 Third-Party Links. The Application(s) contain links to other websites and Application(s) provided by independent third parties (“Third Party Sites.”) Where possible, Provider will make clear where such links are being made. Third Party Sites can be co-branded with Provider and thus can include Provider’s trademark(s). The Customer acknowledges that Provider has no authority or control whatsoever over Third Party Sites and is thus not responsible for the content or availability of Third Party Sites. The Customer acknowledges that Provider will not be a party to, or liable or responsible in any way for, any information, declaration, misrepresentations, errors, omissions, or any transaction concerning goods or services available from such Third Party Sites. The Customer’s rights and obligations concerning goods or services available from such Third Party Sites will solely depend upon the terms and conditions stated by such Third Party Sites.
2.6 Advertising/Sponsorship. The Product may contain, incorporate, or integrate with external providers of advertising, sponsorship, and/or other digital media content. The providers and publishers of the content are responsible for ensuring the material submitted for inclusion on the network complies with international and national law including privacy laws. Provider will not be responsible to the Customer or any other person for any claim relating to the content of or for any error or inaccuracy in any digital material displayed within or in association with the Product.
2.7 Prohibitions on Use. The Customer agrees to not, and to not permit its users to, directly or indirectly, do any of the following at any and all times:
(a) interfere or disrupt with the security of others’ access to the Application(s); or to otherwise abuse, copy, publish, or adapt the Application(s);
(b) copy, reverse-engineer, de-compile, disassemble, replicate, or otherwise misappropriate or attempt to discover the source code or algorithms or underlying ideas or databases used by any part of the Application(s);
(c) create, modify, or translate derivative works based on any part of the Application(s);
(d) lease, rent, distribute, license, sublicense, resell, sell, assign, or otherwise commercially exploit the Product;
(e) use or access data captured via the Product for any purpose other than those contemplated herein, or collect users’ content or information, or otherwise access the Application(s), using automated means (such as robots, spiders, harvesting bots, or scrapers);
(f) post, upload, publish, or otherwise transmit through or to the Application(s) any viruses, bugs, or other harmful, destructive, or disruptive files;
(g) violate any federal, local, state, provincial, or foreign law, treaty, regulation, or convention applicable to Customer in connection with the use of the Product, or use the Product to do anything malicious, unlawful, misleading, or discriminatory; or
(h) use information provided by the Product to feed or encourage services competitive to Provider, or harvest, collect or store information or any content obtained through the Application(s) for any purpose.
2.8 Customer Representations, Warranties, and Indemnity Regarding Personal Information. Customer hereby represents and warrants that Customer will not transmit, upload, or copy any Personal Information including personal information of its agents, of which: (i) Customer does not have the lawful right to distribute, copy, transmit, and/or display; or (ii) violates, or encourages any conduct that would violate, any applicable law or regulation, including, in particular, applicable privacy laws, or would give rise to civil or criminal liability. Customer will defend, indemnify and hold Provider harmless from and against any loss, damages, or costs including reasonable legal fees incurred in connection with any claims, demands, suits, or proceedings made or brought against Provider by a third party based on, relating to or caused by a breach of Customer’s warranties in this agreement or a breach of any applicable privacy laws by Customer in relation to the collection of Customer Information containing Personal Information by Customer from its Agents.
2.9 General Maintenance and Support: Provider will provide Support to Customer with Application(s) issues throughout the Term, during Business Days. Provider will not provide Support during system maintenance periods, or such times as Provider may require for purposes of maintenance or upgrades to Application(s), and Provider will make reasonable efforts to announce the scheduled downtime via e-mail to Customer’s designated e-mail address. Support does not include services required as a result of (i) Customer misuse, alteration, or improper use of Product; (ii) any problem caused by modifications in any version of the Product which was not made or authorized by Provider; or (iii) any problem that results from Customer combining or merging the Application(s) or Hardware with any software or hardware not supplied by Provider, or which was not identified by Provider as compatible with the Product.
2.10 Extended Support, Customization and Other Services. If Customer wishes to have Provider provide additional custom development and/or support and or other services (collectively, “Additional Services”), the Parties will negotiate the terms and conditions of the Additional Services which will be incorporated into a separate agreement. The separate agreement will include a description of the Additional Services and milestones for delivery, payment amounts due, and other mutually agreed terms and conditions. Intellectual Property developed as a result of the Additional Services will be property of the Provider. Any Third Party or Customer contributions will be negotiated in a separate agreement with mutually agreed terms and conditions with the provision that the contribution be deemed a work for hire, and that any Intellectual Property developed as a result of the Additional Services will be property of the Provider.
2.11 Third Party Services.
(a) General. The Application(s) include content, code, functionality, features, components, and services that are provided by third parties (“Third Party Services”). Unless Customer is required to accept and agree to an end user license agreement or terms of service for a Third Party Service in order to access and use such Third Party Service, Provider hereby grants a fully paid, royalty free sublicense to Customer to use each such Third Party Service in connection with its use of the applicable Application. The Customer’s use of a Third Party Service in conjunction with the Application(s) in a manner consistent with the terms of this Agreement is permitted and the proprietary rights, License grant, indemnity, warranty, and limitation of liability provisions in this Agreement will apply to Third Party Services.
(b) Google Maps. Customer hereby accepts and agrees to be bound by the following Third Party Services terms and conditions: (i) the Google Privacy Policy, (ii) the Google Maps/Google Earth Additional Terms of Service, and (iii) the Google Terms of Service.
(c) The Application(s) can include Third Party Services. If a Third Party Service is activated by the Customer, then Customer hereby consents to the sharing of Customer Information, including Personal Information of its Agents, with the Third Party Service.
3. ACQUISITION AND USE OF HARDWARE
3.1 Lease or Purchase of Hardware. The Customer may purchase the Hardware from Provider for the purchase price set out in the Order Form (the “Purchase Price“), or may rent Hardware (“Rented Hardware”) at the monthly price set out in the Order Form on the terms and conditions set out therein and in these Terms of Service. Provider will ship the Hardware in accordance with the Order Form. Provider will use reasonable efforts to meet any requested delivery date for the Hardware. In no event will Provider be liable for any delays with respect to delivery.
3.2 Use of Hardware. The Customer will be responsible for all costs associated with the installation of the Hardware. The Customer agrees to use the Hardware only in connection with the Application(s). The Customer will be solely responsible for the operation and maintenance of the Hardware. The Customer will only have competent personnel perform operation and maintenance in compliance with Provider instructions and documentation and all applicable laws and regulations. The Customer will not permit any other provider of engine-connected services to use the Hardware at any time. The Customer will, at its own cost and expense, comply with and conform to all applicable ordinances, regulations, laws, and legislation in any way relating to the use, possession, operation, maintenance, repair, transportation, import, or export of the Hardware.
3.3 Hardware Replacement and Maintenance. Provider warrants that the Hardware will be free from defects in materials and workmanship, and function substantially in accordance with applicable Documentation, (i) with respect to Hardware purchased by the Customer, for a period of one (1) year from the date of delivery, and (ii) with respect to Rented Hardware, throughout the Term. Customer will report any malfunction in the Hardware to Provider without delay. If Provider notifies the Customer in writing authorizing the return, the Customer will return, at Customer’s cost, the Hardware to Provider. If Provider determines that the malfunction was caused by the Customer or its Agents, the Customer will be responsible for all costs related to the replacement or repair and return shipping of the Hardware. If Provider determines that the malfunction was as a result of a manufacturing problem, Provider will replace or repair the Hardware, and return it to the Customer. If the Hardware was purchased, Provider may, at its sole discretion, provide a credit to the Customer for the unused portion of the Purchase Price of the paid for purchased Hardware, prorated over 24 months. The warranty on any replaced or repaired purchased Hardware will expire at the end of the applicable warranty period for the original Hardware unit. Provider will have no liability under this limited warranty due to Customer’s (a) failure of improper use of the Hardware, including operation or use of the Hardware in combination with products not manufactured or approved by Provider, or (b) alteration, modification or misuse of the Hardware. Provider’s sole liability arising out of any sale or lease of Hardware to the Customer, and Customer’s sole and exclusive remedy is expressly limited, at Provider’s option, to either (a) repair or replace the Hardware, or (b) refund the Purchase Price for the Hardware as provided herein.
3.4 A Dashcam purchased that conforms to the specified technical standards with which the customer is familiar and operates without issues cannot be returned or refunded. Given that the device meets specifications, any defects from improper connection or handling are not the seller’s responsibility. The seller will offer guidance and necessary information for proper installation via manuals and customer support. The seller’s obligation is to provide correct installation instructions, not to perform the installation or operation of the device.
4. CHARGES AND BILLING
4.1 Subscription Fees. Provider provides the Application(s) to the Customer as a subscription service, with fees payable for access to Application(s) as invoiced by Provider (“Subscription Fees”), not including all applicable taxes. Unless the Order Form otherwise provides, Application(s) are provided to the Customer on a month-to-month basis. The Customer will be billed in advance, monthly, for applicable Fees, including without limitation, Subscription Fees and any other recurring equipment charges, service charges, or fees. Provider may pro-rate charges from the date the Customer first accesses the Application(s). The bill will include monthly recurring charges for the next month and charges for non-recurring services the Customer may have received. Provider reserves the right to modify the Subscription Fees at any time on thirty (30) days’ notice to the Customer when there is no fixed Term. In the event of a fixed Term, Provider will only have the right to amend the Subscription Fees for any renewal term.
4.2 Hardware Fees. The Purchase Price for Hardware will be as outlined on the applicable Order Form, and will be due in full, without offset or deduction, within 30 days from date of invoice, all as can be further outlined in the Order Form. Applicable fees for Rented Hardware will be payable monthly, as indicated in the Order Form. All prices quoted on Hardware are shipped to the Customer’s facility. If required by Provider, the Customer is required to pay shipping and other charges in advance. Except as otherwise provided herein, Hardware is non-refundable. For the Customer to secure the payment in full of the Purchase Price, the Customer hereby grants to Provider, and Provider will retain, a deposit or a purchase money security interest in all Hardware until the Purchase Price together with applicable interest and any late payment charges have been paid in full. To secure the Purchase Price of the Hardware, the Customer hereby grants and hypothecates a security interest in the Hardware to the Provider in the amount of the Purchase Price and any applicable interest and late payment charges (where applicable). If requested by Provider, the Customer will, at its own expense, execute financing statements or other instruments necessary to perfect the above security interest.
4.3 Payment and Fees. All amounts the Customer owes to Provider will be due on such dates and for such amounts as indicated in the Order Form or as indicated on invoices which the Provider provided to the Customer. All Payments and Fees are quoted in U.S. dollars and are non-refundable, except as the Order Form may state. In no instance will any prepaid amounts be offset against the Customer’s account balance with Provider. Any payment not received from the Customer by the due date will accrue interest at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, whichever is less, from the date such payment is due until the date paid in full, with interest calculated and payable monthly in arrears based on the amount outstanding as of the last business day of such month. The Customer will also pay all sums expended including reasonable legal, collection, and recovery fees and expenses in collecting overdue payment.
4.4 Taxes. The Customer will be responsible for all applicable Taxes payable with respect to the Product, including without limitation in respect of any Fees arising in connection from the use of the Application(s), Support provided to the Customer, and the registration, licensing, possession, use, or operation of any Hardware, and will indemnify and hold harmless Provider from any Taxes due and payable hereunder.
4.5 Default in Payment.
(a) Late or Non-Payment: The Customer can be billed additional fees, charges, and assessments related to late or non-payments if for any reason or the Customer pays less than the full amount due for the Product or Provider does not receive payment for any amounts owing by the payment due date.
(b) Collection Costs: The Customer agrees to pay all costs of collection, If Provider uses a collection agency or attorney to collect money owed by the Customer.
(c) Suspension/Disconnection: If the Customer fails to pay the full amount for any or all amounts due and owing, Provider, at its sole discretion in accordance with and subject to applicable law, can suspend any or all the Application(s) the Customer receives without liability to Provider until such amounts are paid in full. Provider’s right to suspend an account is in addition to any other rights and remedies available to Provider in the event of non-payment, including interest on overdue amounts and the termination rights set forth herein. Provider will not be liable to Customer or to any other person as a result of any suspension or termination of access to the Application(s) or Support. A suspended account does not remove Customer’s obligation to pay the outstanding amounts outstanding to the date of such suspension, or thereafter for the remainder of the Term, whichever the case may be. If, upon payment in full of all amounts owing, the Customer requests the resumption of Application(s) after suspension or disconnection, then Provider can require the Customer to pay a reconnection fee and/or service activation fee, whichever the case may be, in addition to all past due charges and other fees.
4.6 Mobile Network Charges. The Customer is solely responsible for all of its own software, network, and internet connection costs related to its use of the Product, including but not limited to mobile phone or mobile network data usage fees and applicable roaming charges, which are provided by the Customer’s mobile network provider under the Customer’s separate contracts with them, and Provider is not responsible for these data services or any costs related thereto whatsoever.
5. TERM AND TERMINATION
5.1 Term. The Terms of Service will be in effect from the time that the Application(s) are activated or accessed, or when the Hardware is shipped, and will continue:
(a) on a monthly basis, until terminated by either party as outlined below; or
(b) if a fixed Term is otherwise provided for in any Order Form (a “Fixed Term”), for the Fixed Term, which will automatically renew on expiration for subsequent periods of one (1) year, or as otherwise specified in the Order Form, (each, a “Renewal Term”) unless terminated by either party as outlined in the Termination Section, and during each Renewal Term, Fees will be deemed to be Provider’s then-current Fees.
5.2 Rented Hardware – Events of Termination. The License and lease of Rented Hardware can be terminated as follows:
(a) by either party, with thirty (30) days written notice to the other, or otherwise by agreement of the parties;
(b) by Provider, if the Customer fails to make payment of any Fees or any amount due to Provider;
(c) by Provider, if the Customer breaches any of the provisions or obligations of the Terms of Service or Order Form, and fails to remedy such breach within 14 days of written notice from Provider of such default;
(d) by Provider immediately with written notice to the Customer, if the Customer breaches or threatens to breach any provisions of the Terms of Service relating to Provider’s Intellectual Property and/or Confidential Information rights;
(e) by either party, if the other party becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation, or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under applicable bankruptcy or insolvency legislation;
(f) automatically and immediately, if it is determined that Provider would be prohibited from doing business with the Customer under any applicable law, including any export regulations and controls.
5.3 Effects of Termination. Upon termination, the Customer agrees that:
(a) it will immediately cease all use of the Product, all Documentation and other materials within the Customer’s control or possession, and will return all unpurchased Rented Hardware and any other materials and all Intellectual Property and Confidential Information to Provider within ten (10) business days of the effective date of termination;
(b) it will pay in full for all Fees related to the Product, which will continue to accrue until (i) the effective date of termination, (ii) the Application(s) have been disconnected, and (iii) all Rented Hardware has been returned to and received by Provider. If a Fixed Term is in effect, the Customer will pay all Fees owing up to the expiration date of the Fixed Term;
(c) within ten (10) days of the date on which Application(s) are disconnected, it will return all Rented Hardware to such address as Provider may designate or to Provider’s local business office, all in working order with normal wear and tear excepted. If the Customer fails to return the Rented Hardware, the Customer will be charged the Purchase Price set forth in the current pricing lists for Hardware;
(d) it will release Provider from any further obligation or responsibility to the Customer and the Customer will have no rights or claims against Provider in connection with termination, expiration, or non-renewal of any License or agreement, and the Customer acknowledges that nothing herein contained will be construed to limit or restrict in any way Provider’s ability to pursue any remedies it may have at law or equity;
(e) provisions regarding ownership, intellectual property, privacy, confidentiality, warranty and indemnity, and all other provisions which expressly or by their nature are intended to survive termination, will survive termination of these Terms of Service.
6. OWNERSHIP AND INTELLECTUAL PROPERTY
6.1 Ownership. The Customer agrees and acknowledges that all Intellectual Property in the Product and all rights therein and thereto are solely owned and/or licensed by Provider, and neither Customer nor its Agents will acquire any right, title or interest in, to or under the Intellectual Property or any part thereof in the Product, except such limited rights with respect thereto as may expressly be given hereunder. In the event that the Customer or Agents acquire any such right, title or interest in, to or under any of the Intellectual Property of Provider, the customer hereby transfers and assigns and/or causes its Agents to assign in perpetuity and without further compensation, all of such right, title and interest to Provider, and hereby waives all moral rights with respect thereto, from the moment of their creation or acquiring and will in all cases execute such documents and do all such things as may be reasonably requested from time to time to give effect to the foregoing. Any rights not expressly granted herein are reserved by Provider. If there is any update and enhancement to the Product and its use, the Customer will report to Provider operation and deployment and hereby assign to Provider, free of charges, fees, or royalty, any such update or enhancement from the moment of their creation. The Customer will promptly notify Provider of: (i) any allegations, claims, or notifications that the Product may or will infringe the Intellectual Property rights of any other entity or person, and (ii) any determination, discovery, or notification that any entity or person is or may or will be infringing the Intellectual Property rights of Provider. The Customer agrees and acknowledges that any goodwill created by the Customer with respect to the Product is the sole property of Provider, and will indemnify and save harmless Provider with respect to any third-party claim that the Customer’s actions with respect to the Product have infringed any third party’s intellectual property rights. All of Provider’s Intellectual Property will be deemed to be Confidential Information. The Customer will be bound by all confidentiality provisions with respect thereto.
6.2 Trademarks and Logos. Provider and the Provider’s logo(s), trademark(s) and all other proprietary mark(s) (“Trademarks”) are the sole property of Provider. The Customer will not reproduce, modify, use, or distribute Trademarks without the prior written permission of Provider. The Customer will not contest or challenge ownership of the Trademarks or take any action to acquire any right therein. Customer agrees that its use of the Trademarks and any goodwill associated therewith will be an exclusive benefit to Provider. The Customer will in writing notify Provider of any unauthorized use or infringement of the Trademarks promptly upon receipt of notice thereof. The Customer agrees that Provider may use the Customer’s name and logo to identify the Customer as a customer of Provider’s on Provider’s website, and as a part of a general list of Provider’s customers for use and reference in Provider’s marketing, corporate, and promotional literature. Customer also agrees that Provider may issue press release(s) identifying Customer as a customer of Provider and describing Customer’s utilization and the benefits that Customer receives from use of the Product.
6.3 Customer Information. The Customer will provide information and data to Provider, information that is current, complete, and accurate including without limitation the Customer’s legal name, legal company name, email, address, telephone number(s), the number of devices on which or through the Application(s) are being used, and payment data (including without limitation information provided when authorizing recurring payments) (collectively, “Customer Information”). The Customer agrees to notify Provider promptly if there is any change in the Customer Information. Customer agrees and acknowledges that Provider stores, compiles, generates, and uses system information including usage, analytics, and diagnostic information to monitor and improve the Service and for the creation of new products (“Customer Data”). Customer hereby grants to Provider a perpetual, non-exclusive, royalty free right and license (including the right to sublicense) to aggregate, repurpose, gather, organize, combine, and repackage Customer Data and data incorporating Customer Information generated by the Customer’s use of the Product (“Use Data”) in order to provide support and maintenance for the Product, and for use in reports, studies, programs, count data. Provider will own all such Use Data. Provider reserves the right to make Customer Information including Personal Information available to police, other governmental agencies, and auditors, or others as permitted or required by law, and to provide Customer Information to third parties, whether or not for compensation, if required in conjunction with commercial agreements between Provider and such third parties, and will use reasonable commercial efforts to safeguard Customer Information, and will use Customer Information in accordance with its privacy and anti-spam policy located at https://xeld.us/privacy-policy/. Where Customers have elected to provide information to third parties through the Application(s), Provider has no ability to control and assumes no responsibility or liability for, the use of Customer Information and assumes no responsibility or liability for losses resulting from illegal or fraudulent access to Customer Information.
7. CONFIDENTIAL INFORMATION
7.1 Confidentiality Obligations. All Confidential Information supplied in any way by or on behalf of one party (the “Disclosing Party”) to the other party (the “Receiving Party”) including the proprietary terms of this agreement will be kept confidential by the Receiving Party. The Receiving Party will not acquire any license or right of any kind regarding any Confidential Information of a Disclosing Party and will not disclose or use Confidential Information to any party other than for purposes herein or otherwise authorized in writing by the Disclosing Party. Nevertheless, the Receiving Party may disclose the same to its authorized Agents only for the purposes herein or otherwise authorized in writing by the Disclosing Party, provided they are bound in writing to confidentiality provisions as stringent as those provided herein, and the Receiving Party will be responsible for all violations whatsoever by its Agents. Each party agrees to preserve the strict confidentiality of such information at least in the same manner as it protects the confidentiality of its own information and data, including at all times exercising at least a reasonable degree of care in the protection of the Confidential Information.
7.2 Exclusions to Confidentiality Obligations. Confidentiality obligations will not apply to the disclosure of Confidential Information which:
(a) is known to the Receiving Party at the time of disclosure as demonstrated by satisfactory evidence;
(b) is now or hereafter becomes generally known or available to the public without breach of the Terms of Service by the Receiving Party;
(c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as demonstrated by satisfactory evidence;
(d) is approved for use or disclosure by written authorization of the Disclosing Party;
(e) is lawfully furnished to the Receiving Party by a third party without restriction or breach of the Terms of Service;
or
(f) is required to be disclosed by valid order of a court or other governmental authority or law, provided that the Receiving Party will first have given prompt notice to the Disclosing Party of such request, and the Disclosing Party has a reasonable time to attempt to prevent or limit such disclosure, and the Receiving Party makes any required disclosures in consultation with the Disclosing Party only disclosing the portion of the Confidential Information which is legally required.
7.3 Irreparable Harm. Each Party acknowledges that unauthorized disclosure and use of Confidential Information will cause irreparable harm to the Disclosing Party for which damages may not be an adequate remedy. In the event of unauthorized disclosure and use of its Confidential Information, such party will, in addition to any other rights or remedies it may have in law or equity hereunder be entitled to injunctive relief.
7.4 Effect. The obligations of confidentiality will remain in effect throughout the Term and for the longer of: a period of seven (7) years following the expiration or earlier termination, or as long as the relevant Confidential Information is considered Confidential Information.
8. LIMITATIONS AND INDEMNITIES
8.1 Limited Warranty. Provider warrants that the Product will operate in substantial conformity with its Documentation. Provider will take reasonable commercial efforts to ensure reasonable levels of system uptime and availability and optimum performance of the Product. The Customer agrees and acknowledges that it uses the Product, and relies on the Product’s content, at the Customer’s sole discretion and risk. The Customer agrees and acknowledges that the nature and use of the Product requires the exercise by the Customer of subjective judgments as to factors of the produced data. The Customer agrees and acknowledges that it is the responsibility of Customer to confirm, review, and check results, and that it will be solely responsible for any damage to its business, systems, or loss of data that may result from the use of the Product. Provider warrants that it owns or licenses the Product, and that to the best of its knowledge, the Customer’s use of the Product will not infringe the Intellectual Property rights of any third party.
8.2 Internet. Despite the internet being accepted as a secure environment, the Customer accepts and acknowledges there may be interruptions in service so that access to the Application(s) may be interrupted, suspended, or terminated at times, due to circumstances that may be wither within or beyond the control of Provider. Provider will take reasonable commercial efforts to keep the Application(s) accessible at all times, nevertheless the Application(s) may be unavailable at times for any reason. The Customer agrees and acknowledges that Provider will not be responsible at any time for any claims, data lost, or damages incurred while transmitting information on the internet with respect to the Application(s). The Customer acknowledges that the internet is not secure and provides the opportunity for unauthorized third parties to acquire access to the Application(s) and Customer Information. Thus, Provider does not guarantee the privacy or security of any Customer information transferred over or stored in any system connected to the internet. Provider disclaims any warranty or representation that confidentiality of information transmitted through the provision of the Product will be maintained. The Customer agrees and acknowledges that Provider will not be liable for any access to or usage of any information and data by third parties used in connection with the Product. Provider’s only liability will be for Provider to correct any reported problem in the Application(s) directly due to its own support failure.
8.3 Limitation of Liability. Provider gives no warranties or conditions (except for the specific limited warranties provided herein) whether arising by statute or otherwise in law, or from a course of dealing or usage of trade, or implied, with respect to the Product, and no representation as to availability, accuracy, or usability. Except for the limited warranties expressly provided herein, to the fullest extent allowed by applicable law, Provider hereby disclaims any and all warranties, conditions, and duties, including without limitation, any implied warranties of merchantability or of fitness for a particular purpose, that the functions contained in the Application(s) will meet the Customer’s requirements, or that the operation of the Application(s) will be error free, uninterrupted, timely, or secure. Except for the limited warranties specifically provided herein, Provider makes no warranty that the Application(s) are free from infection by viruses, bugs, defects, or other harmful, destructive, or disruptive files that can impact the Product from operating precisely as described. Provider makes no warranty that all errors will be corrected. The Customer hereby waives all claims against Provider for disruption, interference, or incompatibility between the Product and Systems. In the event of such disruption, interference, or incompatibility, the Customer’s sole remedy will be to terminate the Application(s) as provided herein. PROVIDER AND ITS AGENTS WILL IN NO EVENT BE LIABLE FOR ANY INJURY, LOSS, CAUSE OF ACTION, WHETHER IN TORT, CONTRACT, NEGLIGENCE, OR OTHERWISE, LIABILITY, OR DAMAGE OF ANY KIND (INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE) FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT. IN NO EVENT WILL PROVIDER, OR ITS AGENTS, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, WHETHER OR NOT FORESEEABLE INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOSS OF BUSINESS, FAILURE TO REALIZE EXPECTED SAVINGS, LOST DATA, OR ANY FAILURE OF SECURITY RESULTING FROM (A) THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) THE USE OF OR INABILITY TO USE THE PRODUCT. The Customer agrees and acknowledges that the Customer’s exclusive recovery for any damages that the Customer may have a right to, and the Customer’s exclusive remedy, will be limited to the direct damages the Customer actually incurred up to the maximum aggregated amount of Fees that Provider received from the Customer during the six (6) month period immediately preceding the date on which the event giving rise to the cause of action is alleged to have occurred, irrespective of the nature of the claim. No action will be brought by the other party more than one year after a cause of action has arisen against either party or any of its Agents, regardless of form (including negligence), arising out of or in any way related to hereto.
8.4 Indemnification by Customer. The Customer agrees and acknowledges to indemnify and hold Provider, its affiliates, and their respective Agents harmless from any and all and against any and all liabilities, actions, claims, demands, damages, loss, cost or expense, including reasonable legal fees, made by any third party, arising out of any breach of the provisions of these Terms of Service or any other agreement of the parties or any other documents, terms and conditions of service or use and privacy policy incorporated by reference herein with respect to the use of the Product by the Customer, the Product by the Customer or its Agents, or arising as a result of any third party alleging that the use of the Product by the Customer or its Agents, other than in accordance with these Terms of Service, misappropriates, infringes, or violates any Intellectual Property of the third party.
8.5 Indemnification by Provider. Provider will indemnify and hold Customer harmless from and against third party claims for violation or infringement of third party intellectual property rights associated with the Product, and can at its sole discretion and expense:
(a) replace the product with a product of similar functions and efficiency that is not subject to such claim; or
(b) procure the right to continue using the affected Product;
(c) modify the Product so that there is no longer any violation or infringement, provided that such modification does not adversely affect the functional capabilities as provided in the Documentation;
provided however that Provider will have no liability respecting any claim of violation or infringement or breach to the extent such claim is based upon the combination, operation, or use by the Customer of the Application(s) or Hardware with other software, equipment, devices, or other things not supplied by Provider or in a manner not substantially consistent with Provider Documentation.
8.6 Mutual Indemnity Provisions. Each party’s indemnity obligations hereunder are subject to the following:
(a) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of any such claim;
(b) the indemnifier will have sole control of the defense to the claim and all related settlement negotiations with respect to the claim; and
(c) the aggrieved party will promptly notify the indemnifier in writing of the claim within ten (10) days.
9. PURCHASE/SUBSCRIPTION AGREEMENT DEFAULT TERMS
9.1 Default Terms. If no receipt of a signed Order Form is received thirty (30) days after possession or receipt of Hardware at Customer’s address, whichever is earlier, then Customer implies consent to the Terms of Service including the Default Terms specified in this section. Also, if Order Form does not specify otherwise, then the subscription and/or purchase agreement terms are the following default terms:
Application Subscription agreement will be for a Term of 12 months with payments beginning on the 1st of the month after device purchase or possession.
If Customer desires cancellation of service, Customer must notify Provider in writing via email or written correspondence more than 30 days prior to the beginning of the next term cycle. Otherwise, subscription will be automatically renewed.
If payment is provided via credit card a 3% transaction fee will be included.
Late payments running over one month from the due date will cause Customer account to be suspended. Suspension will be lifted if resolution to payment issue is made.
All equipment and setup charges will be due upon acceptance of Terms of Service.
Returns of Hardware must be made within thirty (30) days of receipt. Any damage to Hardware will be deducted from Customer account. Customer is liable for restocking fee of 30% of cost.
10. GENERAL TERMS AND CONDITIONS
10.1 Force Majeure. Neither party will be liable to the other for the failure to render any performance of obligations or for delay in any performance when such failure or delay is a direct result of any present or future riot, war, act of God, statute, law, ordinance, regulation, order, failure to deliver on the part of its suppliers, judgment or decree, earthquake, epidemic, pandemic, explosion, lockout, strike, boycott, labor unrest, riot, or similar catastrophic occurrence. Notwithstanding the foregoing, these provisions will not be applicable to any obligation involving the payment of money by the Customer.
10.2 Dispute Resolution. In the event of a dispute over the Terms of Service or Order Form, the parties will use good faith efforts to settle such dispute within thirty (30) days of notice. If the parties do not meet within 20 work days from the notice, the Parties agree to submit the dispute to mediation. Each party will select a mediator within 30 days, and both selected mediators will agree upon a third party to mediate the dispute. Selected third party mediator will have 60 calendar days to cause a settlement. If a party fails to name a mediator in set time, or if settlement efforts fail, the dispute will be finally settled by arbitration in accordance with the Arbitration procedures of Illinois and the United States of America in accordance with the rules of the American Arbitration Association. Arbitration must be concluded within calendar 90 days of start of Arbitration. If the parties cannot agree on an Arbitrator, each Party will select an Arbitrator. Selected Arbitrators will agree upon a third party Arbitrator. If there is no agreement to an Arbitrator, then the American Arbitration Association will select the Arbitrator. If a Party fails to participate in mediation and arbitration after receipt of notice then each Party agrees that the other party will have the right to immediately proceed to arbitration and have the right to select the Arbitrator in its sole discretion. Arbitration will proceed as if the non-participating party were participating in the arbitration. The arbitration award will be final and binding upon the parties and judgment thereon may be entered in any court having competent jurisdiction. The costs of the arbitrator will be paid by the unsuccessful party.
10.3 Non-Solicitation/Non-Interference. Soliciting or hiring any Agents of Provider (either directly or indirectly), without written permission of Provider, at any time during the Agreement, and for a period of two (2) years following its termination is prohibited. The Customer will not at any time interfere or attempt to interfere with the business of Provider, or persuade, or attempt to persuade any prospective customer or customer of Provider to discontinue or alter its relationship with Provider.
10.4 Notices. Any notice given by one party to the other will be sufficiently given if (a) mailed by regular mail, or (b) personally delivered or couriered, or (c) sent by email or by facsimile or other electronic transmission, and will be deemed to be received by the recipient on the fifth business day after mailing, if sent by mail, and on the day of delivery if delivered or sent by email or facsimile. Such notices will be sent to the parties at the communication address provided in the relevant Order Form.
10.5 Jurisdiction/Venue. In the event Arbitration is refused to be enforced by a court, the Parties expressly agree that jurisdiction and venue for any actions under or pursuant to this agreement will be taken up in a court in Lake County Illinois or the Federal District Court for the Northern District of Illinois and the Terms of Service and any Order Form will be governed by and construed in accordance with the laws of Illinois and the federal laws of the United States applicable therein, without reference to conflicts of law principles. The Customer irrevocably attorns to the exclusive jurisdiction of the courts of Illinois and the federal laws of the United States with respect to any dispute or legal proceeding which may arise out of, under, or in connection with these Terms of Service or Order Form. Either party must initiate a cause of action for any claim(s) arising out of or relating hereto and its subject matter within one (1) year from the date when such party knew, or should have known after reasonable investigation, of the facts giving rise to such claim(s).
10.6 Export Control. The Terms of Service and any agreement between the parties are subject to any governmental laws, orders, or other restrictions on the export of software programs and related information and documentation that may be imposed by governmental authorities. The Customer will comply with any governmental laws, orders, or other restrictions related to export and reexport (including technical data and any related information and documentation) which may be imposed by governments of the United States and any other applicable country.
10.7 Transfer. Unless Provider gives prior written consent, the Customer will not sublicense, assign, or otherwise transfer any of its rights or obligations, or any right to access and use the Product, in whole or in part, including without limitation by operation of law. Any attempt to assign without such consent will be null and void. The Customer will notify Provider immediately of any change of ownership. Provider can assign this Agreement and delegate or subcontract its obligations hereunder to any third party without the consent of, but on notice to, the Customer. Subject to the foregoing, the Agreement and the terms and conditions will bind and inure to the benefit of each party’s permitted successors and assigns.
10.8 Waiver. Failure by either party to insist upon or enforce strict performance of any provision or failure to exercise any right or remedy under the Terms of Service does not constitute a waiver of that right or remedy. Any waiver of any provisions must be in writing.
10.9 Severability. If any provision of the Terms of Service or Order Form is found to be invalid or unenforceable by any court having competent jurisdiction, such portion will be construed in accordance with applicable law as much as possible to reflect the original intentions of the parties, or may be severed therefrom, and the remainder of the provisions will remain in full force and effect. The invalidity of such provision will not affect the validity of the remaining provisions, all of which will remain in full force and effect.
10.10 Entire Agreement. Headings in these Terms of Service are for convenience only and will have no legal meaning or effect. These Terms of Service including any Order Form and exhibits and schedules and any other documents incorporated by reference, including Provider’s Privacy and Anti-Spam policy located at https://xeld.us/privacy-policy/, collectively constitute the entire agreement and understanding between Provider and the Customer with respect to the relevant subject matter, and supersedes any and all prior written or verbal agreements, proposals or representations. In the event of an inconsistency between the Terms of Service and other Documentation, such as the Order Form, with respect to the subject matter hereof, the order of understanding and precedence will be (1) the Order Form, (2) the Terms of Service, and (3) the Documentation, to the extent necessary to remedy such inconsistency.
10.12 Customer Acknowledgement. The Customer acknowledges that it (he/she or it’s representative) has carefully read and understood the Terms of Service, and acknowledges it has been advised to review the Terms of Service regularly to ensure the Customer is updated as to any changes, and to obtain independent legal advice before accepting these Terms of Service, and has either done so, or has chosen not to do so.
