End User License Agreement
Between Fleetsense And The End User
This End User License Agreement ("Agreement") is a binding agreement between the end user ("you", "your" or "End User") of the software application and website (as defined herein) and Fleetsense Ltd.. This Agreement governs your use of the Fleetsense Mobile Device Software, including the Hosted Software (both as defined herein) and all related documentation. The Mobile Device Software is licensed, not sold, to you.
BY DOWNLOADING/INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
"Deidentified" means data that has been processed to remove, hide, encrypt, anonymize or aggregate identifying information such that one could not, using reasonable efforts, link such information back to you.
"End User Data" means data entered or uploaded by you to the Hosted Software via the Mobile Device Software or via web browser.
"Fleetsense MOBILE SOFTWARE" or "Mobile Device Software" means the downloadable software application offered by Fleetsense Ltd. through which your Fleetsense account is accessed.
"Hosted Software" or "Services" means the online software, platform and websites which you can access via the Mobile Device Software or any web browser through your account that are hosted and maintained by Fleetsense Ltd. containing interactive tools to record any rfid asset or vehicle data reported by the end users.
"Mobile Device" means a smartphone, tablet, or other mobile computing device on which the Mobile Device Software is installable or installed.
"Fleetsense Data" means all information, including, but not limited to, data, analyses, measurements, reports, trends, and metrics, generated from, derived from, based on or related to End User Data.
"Website" means the website accessible at https://fleetsense.io and any wesbite which https://fleetsense.io may redirect to, or via the Mobile Device Software.
2. License Grant
Fleetsense Ltd., through the Mobile Device Software, provides the Services to transporters and their staff. Subject to your compliance with the terms of this Agreement, Fleetsense Ltd. grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
(a) download, install, and use the Mobile Device Software, Hosted Software or Services for your commercial use on your Mobile Device strictly in accordance with the Mobile Device Software's documentation; and
(b) access and use on such Mobile Device Services, Hosted Software or Services made available in or otherwise accessible through the Mobile Device Software, Hosted Software or Services, strictly in accordance with this Agreement.
3. License Restrictions
(a) You shall not: (i) copy the Mobile Device Software, Hosted Software or Services;
(ii) modify, translate, adapt or otherwise create derivative works or improvements, of the Mobile Device Software, Hosted Software or Services;
(iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Mobile Device Software, the Hosted Software, Services or any part thereof;
(iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Mobile Device Software, Hosted Software or Services;
(v) rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Mobile Device Software or any features or functionality of the Mobile Device Software, Hosted Software or Services, to any third party for any reason, including by making the Mobile Device Software, Hosted Software or Services available on a network where it is capable of being accessed by more than one device at any time;
(vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile Device Software, Hosted Software or Services; or,
(vii) upload or introduce any virus or malware to the Hosted Software or Services;
(iix) share access to the Hosted Software or Services with any third parties or non-employees. Doing so may result in permanent barring of such shared credentials and/or companies as a whole from accessing the Hosted Software or Services.
(b) You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorised users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your End User Data.
4. Reservation of Rights
You acknowledge and agree that the Mobile Device Software, Hosted Software and Services is provided under license, and not sold to you. You do not acquire any ownership interest in the Mobile Device Software, Hosted Software or Services under this Agreement or any other rights thereto other than to use the Mobile Device Software, Hosted Software or Services in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Fleetsense Ltd. and its licensors and service providers reserve and shall retain each of their entire right, title and interest in and to the Mobile Device Software, Hosted Software and Services. All rights not specifically granted in this Agreement are reserved by Fleetsense Ltd.. Fleetsense Ltd. shall own all rights in any functionality, features, modification or customisation of the Mobile Device Software, Hosted Software and Services.
5. Collection and Use of Your Information
6. Ownership and Use of Data
All ownership rights in and to the Mobile Device Software, Hosted Software and Services shall remain exclusively with Fleetsense Ltd. and its licensors, as applicable. Access to these is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.
7. Geographic Restrictions
The Mobile Device Software and access to Fleetsense Ltd.'s Hosted Software and Services are provided for access and use by person of any country.
8. Updates and Compatibilty
Fleetsense Ltd. may from time to time in its sole discretion develop and provide updates to the Mobile Device Software, Hosted Software or Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Fleetsense Ltd. has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either:
(a) the Mobile Device Software will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
In order to be able to fully utilise the Mobile Device Software, Hosted Software and Services, you must promptly download and install all Updates. You acknowledge that the Mobile Device Software, Hosted Software and Services, or portions thereof, may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Mobile Device Software, Hosted Software and Services and be subject to all terms and conditions of this Agreement.
The Mobile Device Software needs to be updated from time to time in order to adhere to minimum requirements set by the entities that govern our app hosting. Fleetsense Ltd. will not be held responsible for any compatibility issues that may arise due to outdated or incomaptible mobile devices being used by the End User.
9. Third Party Materials
The Mobile Device Software, Hosted Software or Services may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that Fleetsense Ltd. is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Fleetsense Ltd. does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties' terms and conditions.
10. Term and Termination
(a) The term of Agreement commences when you download/install the Mobile Device Software or acknowledge your acceptance, and will continue in effect until terminated by you or Fleetsense Ltd. as set forth in herein.
(b) You may terminate this Agreement by deleting the Mobile Device Software and all copies thereof from your Mobile Device.
(c) Fleetsense Ltd. may terminate this Agreement at any time without notice if it ceases to support the Mobile Device Software, Hosted Software or Services, which Fleetsense Ltd. may do in its sole discretion. In addition, Fleetsense Ltd. may immediately terminate this Agreement with or without any notice if the End User or any of their staff or subsidiaries violate any of the terms and conditions of this Agreement, which includes the act of non-payment of licensing fees.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate;
(ii) you must cease all use of the Mobile Device Software, Hosted Software and Services and delete all copies of the Mobile Device Software from your Mobile Device; and
(iii) your access to Fleetsense Hosted Software and Services, your account and your End User Data will be terminated.
(e) Termination will not limit any of Fleetsense Ltd.'s rights or remedies at law or in equity.
11. Disclaimer of Warranties
(a) THE APPLICATION IS PROVIDED TO YOU "AS IS, AS AVAILABLE" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, Fleetsense Ltd., ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, Fleetsense Ltd. PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(b) WITHOUT LIMITING THE FOREGOING, NEITHER Fleetsense Ltd. NOR ANY Fleetsense Ltd. PROVIDER MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE AND SERVICES, OR THE INFORMATION, CONTENT, THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE OR SERVICES, AND MATERIALS OR PRODUCTS INCLUDED THEREON; (II) THAT THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE OR SERVICES; OR (IV) THAT THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE OR SERVICES, ITS SERVERS, THE CONTENT, OR E-MAILS SENT FROM OR ON BEHALF OF Fleetsense Ltd. ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL COMPONENTS.
(c) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
(d) You agree that Fleetsense Ltd. assumes no responsibility for any content you submit, upload, create or make available through the Mobile Device Software, Hosted Software or Services.
(e) Fleetsense Ltd. is not liable for the acts or omissions of its contractors, vendors and service providers.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Fleetsense Ltd. OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (i) THE DATABASE ACTIVATION FEE PAID BY THE END USER (ii) ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE OR SERVICES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. Fleetsense Ltd. DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE OR SERVICES. THE OPERATION OF THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE AND SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE THE CONTROL OF Fleetsense Ltd.
UNDER NO CIRCUMSTANCES SHALL Fleetsense Ltd. BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE Fleetsense APPLICATION OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORISED ACCESS TO Fleetsense RECORDS, PROGRAMS, OR SERVICES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED THROUGH THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE OR SERVICES AND YOU TO THE Fleetsense MOBILE SOFTWARE, HOSTED SOFTWARE AND SERVICES.
You agree to indemnify, defend and hold harmless Fleetsense Ltd. and its proprietors, officers, directors, employees, agents, affiliates, service providers, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Mobile Device Software or your breach of this Agreement.
14. Governing Law
This Agreement is governed by and construed in accordance with the laws of the Republic of Zambia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Mobile Device Software shall be instituted exclusively in the courts of the Republic of Zambia. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
15. Limitation of Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) MONTH AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
16. Subscriptions, Refunds and Cancellation Terms
You acknowledge and agree to our SRC terms as found on the Fleetsense website, Fleetsense web-app and Fleetsense mobile app.
17. Entire Agreement
This Agreement constitutes the entire agreement between you and Fleetsense Ltd. with respect to the Mobile Device Software and the use of the Hosted Software and Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.