End User License Agreement for Drivewyze Software and Services
This End User License Agreement (the “Agreement”) is a legal agreement between you (“Licensee”), and Drivewyze Inc. (“Drivewyze”). Licensee must accept the terms of this Agreement before accessing or otherwise using the Software (as defined below) or any of the services that may be provided by Drivewyze under this Agreement (“Services”). To access and use the Software and Services, Licensee must have access to the Internet. Licensee shall have access to limited Services and functionality of the Software (“Preview Mode”) unless Licensee subscribes for full Services with Drivewyze as part of the Drivewyze Bypass Program. If Licensee subscribes for Services with Drivewyze, Licensee must also agree to be bound by the Drivewyze Service Agreement found at www.Drivewyze.com (“Service Agreement”). In the event of any conflict between this Agreement and the Service Agreement with respect the Software, this Agreement shall prevail, and in the event of any conflict with respect to Services, the Service Agreement shall prevail.
If Licensee does not agree to the terms of the Agreement, Licensee is not granted any rights whatsoever in the Software. If Licensee is not willing to be bound by these terms and conditions, Licensee should not click on the “ACCEPT” button, and may not access or otherwise use the Software or Services. By clicking “ACCEPT” or accessing or using the Software or Services, you agree to be bound by the terms and conditions of this Agreement.
1. LICENSE GRANT AND RESTRICTIONS. Subject to the terms and conditions of this Agreement, including the payment of any applicable subscription fees, Drivewyze grants Licensee a personal, limited, non-exclusive, non-transferable license to electronically access and use the Software solely for the purpose of using the Software as part of the Demo Mode or for accessing and using the Service as described at www.Drivewyze.com.
“Software” means the Drivewyze software program and includes any programs, mobile applications, tools, internet-based services, components and any “updates” (for example, Software maintenance, service information, help content, bug fixes, or maintenance releases, etc.) of the Software that Drivewyze provides or makes available to Licensee. Licensee is entitled to download updates to the Software that Drivewyze generally makes available to other users of the Software. This Agreement and license grant shall apply to such updates unless additional terms are provided with such updates that expressly supersede the terms and conditions of this Agreement. Certain Software may be accompanied by, and will be subject to, additional terms, and may be subject to third party licenses with respect to open source software included with the Software.
Licensee is not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) access or attempt to access any other Drivewyze systems, programs or data that are not made available for public use; (ii) copy, reproduce, modify, translate, adapt, create derivative works based upon, republish, upload, post, transmit, resell or distribute in any way the material found at www.Drivewyze.com; (iii) make the Software available over a network where it could be used by multiple devices at the same time or allow anyone other than Licensee to access the Software and Services; (iv) rent, sell, lease, lend, redistribute or sublicense the Software or permit any third party to benefit from the use or functionality of the Software or Services via a rental, lease, timesharing, service bureau, or other arrangement; (v) use the Software on any device that Licensee does not own or control; (vi) distribute or assign, sublicense or otherwise transfer any of the rights granted to Licensee under this Agreement; (vii) copy (except as expressly permitted by this license and the Service Agreement), modify, translate, adapt, or create derivative works of the Software; (viii) circumvent any technical or security limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decode, decompile, disassemble, derive the source code or otherwise reverse engineer the Software except as otherwise permitted by applicable law or by licenses with respect to open source software included with the Software; (ix) perform or attempt to perform any actions that would interfere with the proper working of the Software or Services, prevent access to or the use of the Software or Services by Drivewyze’s other licensees or customers, or impose an unreasonable or disproportionately large load on Drivewyze’s infrastructure; or otherwise use the Software except as expressly allowed under this Section 1.
In using the Software and Services, Licensee agrees to obey all applicable federal, state and local laws, regulations and guidance, including but not limited to those governing eligibility for bypass at Service Sites, including criteria regarding carrier credentials, vehicle and driver information. “Service Sites” means federal, state or provincial sites, including but not limited to open weigh stations, ports-of-entry, temporary inspection sites, mobile inspection sites, agricultural interdiction facilities, and other sites monitored by government agencies at which the Services may be utilized. Licensee agrees not to use the Software or Services in any vehicle other than an approved vehicle registered with Drivewyze with respect to the Software or Services. For information regarding the proper use of the software application, please see the “Drivewyze PreClear User Guide” document found at www.drivewyze.com.
2. RESERVATION OF RIGHTS AND OWNERSHIP. The Software is licensed not sold, and Drivewyze reserves all rights not expressly granted to Licensee in this Agreement. The Software is protected by copyright, trade secret and other intellectual property laws. Drivewyze and its licensors own the title, copyright, and other worldwide intellectual property rights in the Software and all copies of the Software. This Agreement does not grant Licensee any rights to trademarks or service marks of Drivewyze.
3. REGISTRATION DATA. Licensee must register to use the Software and Services other than in Demo Mode. Licensee must provide true, accurate, current and complete information as prompted by the interview sign-up process (the “Registration Data”) and maintain and immediately update the Registration Data to keep it accurate, current and complete. If Licensee provides any Registration Data that is inaccurate, not current or incomplete, or Drivewyze has reasonable grounds to suspect is inaccurate, not current or incomplete, Drivewyze may, in its sole discretion, suspend or terminate Licensee’s account and refuse any and all current or future access to and use of the Software or Services (or any portion thereof).
4. LICENSEE ACCESS INFORMATION. “Licensee Access Information” means Licensee’s access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by Licensee to access the Software, Services and Licensee’s financial institution accounts. Licensee is solely responsible for: (i) maintaining the confidentiality and security of Licensee Access Information. Licensee will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data (“Communications”) entered using the Licensee Access Information. Drivewyze assumes that any Communications it receives through use of the Licensee Access Information were sent or authorized by Licensee. Licensee agrees to immediately notify Drivewyze in writing via email if Licensee becomes aware of any loss, theft or unauthorized use of any Licensee Access Information. Drivewyze reserves the right to deny Licensee access to the Software or Services (or any part thereof) if Drivewyze reasonably believes that any loss, theft or unauthorized use of Licensee Access Information has occurred. Licensee must inform Drivewyze of, and hereby grants to Drivewyze permission to use, Licensee Access Information to enable Drivewyze to provide the Services to Licensee, including updating and maintaining Event Data, addressing errors or service interruptions, and to enhance the types of data and services Drivewyze may provide to Licensee in the future.
5. EVENT DATA. “Event Data” means information, files or data that is collected and stored in using the Software or Services, including but not limited to user name, password information, vehicle information, location , device platform, Software version, and network provider. Licensee shall prevent unauthorized access to or use of the Event Data. Licensee authorizes Drivewyze to collect and use the Event Data, and to combine Licensee’s Event Data with that of others in a way that does not identify Licensee or any individual personally, to improve services and to compare use practices with others with similar use habits.
6. CHANGES AND TERMINATION. Drivewyze shall have the right, in its sole discretion and with reasonable notice posted on www.Drivewyze.com or sent to Licensee’s email address provided in the Registration Data, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Software and Services, temporarily or permanently. Drivewyze reserves the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws, regulations, guidance or its policies or agreements. Licensee may reject changes by discontinuing use of the Software and Services to which such changes relate, or if an update to the Software is provided, by rejecting the downloading of such update. Drivewyze reserves the right to terminate this Agreement and the license to the Software by providing thirty (30) days written notice at any time if Licensee rejects such update. Licensee’s continued use of the Software or Services or downloading of an update will constitute Licensee’s agreement to such changes. Drivewyze may, from time to time, perform maintenance upon the Software or Services resulting in interrupted service, delays or errors in the Software or Services. Drivewyze will attempt to provide prior notice of scheduled maintenance, but cannot guarantee that such notice will be provided.
7. THIRD PARTY SERVICES AND WEBSITES. In connection with Licensee’s use of the Software, Licensee may be made aware of services, products, offers and promotions provided by third parties, and not by Drivewyze (“Third Party Services”). If Licensee decides to use Third Party Services, Licensee is responsible for reviewing and understanding the terms and conditions governing any Third Party Services. Licensee agrees that the third party, and not Drivewyze, is responsible for the performance of the Third Party Services.
The Software may contain or reference links to websites operated by third parties (“Third Party Websites”), which may display, include or make available content, data, information, applications or materials (“Third Party Materials”).These links are provided as a convenience only. Such Third Party Websites are not under the control of Drivewyze. Drivewyze is not responsible for the content of any Third Party Website or any link contained in a Third Party Website. Drivewyze does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, Third Party Services, or Third Party Materials, and the inclusion of any link in the Software or Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Drivewyze of any information contained in any Third Party Website. In no event will Drivewyze be responsible for the Third Party Websites, Third Party Services, or Third Party Materials, or the use of or inability to use the foregoing. Access to any Third Party Website and Third Party Materials is at Licensee’s own risk, and Licensee acknowledges and agrees that linked Third Party Websites may contain terms and privacy policies that are different from those of Drivewyze. To the extent Licensee chooses to access such Third Party Websites, Third Party Services, or Third Party Materials, Licensee does so at Licensee’s own initiative and risk. Drivewyze and its licensors reserve the right to change, limit, suspend, remove, or disable access to any Third Party Websites, Third Party Services, or Third Party Materials at any time without notice.
8. FEEDBACK. Drivewyze may provide Licensee with a mechanism to provide feedback, suggestions and ideas, if Licensee chooses, about its online products and services (“Feedback”). Licensee agrees that Drivewyze may, in its sole discretion, use the Feedback Licensee provides to Drivewyze in any way, including in future modifications of the Software, multimedia works and/or advertising and promotional materials relating thereto. Licensee hereby grants Drivewyze a perpetual, worldwide, fully transferable, irrevocable, royalty-free, fully paid up license to use, modify, create derivative works from, distribute, perform, reproduce and display the Feedback or part thereof. Any and all support questions should be directed to Drivewyze firstname.lastname@example.org.
Licensee agrees that Drivewyze may collect and use technical data and related information, including but not limited to technical information about Licensee’s device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Licensee (if any) related to the Software and Services. Drivewyze may use this information, as long as it is in a form that does not personally identify Licensee, to improve its products or services, or to provide services or products to Licensee.
10. DISCLAIMER OF WARRANTIES. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND/OR THE SERVICES IS AT LICENSEE’S SOLE RISK. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRIVEWYZE, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”)DISCLAIM ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. DRIVEWYZE DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE OR SERVICES ARE SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, IDENTITY THEFT, THREAT OF HACKERS, OTHER PROGRAM LIMITATIONS, THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE SOFTWARE OR SERVICES WILL MEET LICENSEE’S REQUIREMENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR REPRESENTATIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY. IN THAT EVENT, ANY IMPLIED WARRANTIES OR REPRESENTATIONS ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE OR SERVICES, TO THE EXTENT PERMITTED BY APPLICABLE LAW
THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT DRIVEWYZE AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICES. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. DRIVEWYZE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT LICENSEE’S USE OF THE SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS, REGULATIONS OR GUIDANCE.
11. LIMITATION OF LIABILITY AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF DRIVEWYZE AND ITS SUPPLIERSFOR ALL MATTERS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE OR SERVICES, AS APPLICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRIVEWYZE AND ITS SUPPLIERSSHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR OTHER ECONOMIC LOSS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND EVEN IF DRIVEWYZE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DRIVEWYZE AND LICENSEE. DRIVEWYZE WOULD NOT BE ABLE TO HAVE PROVIDED THE SOFTWARE OR THE SERVICES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO LICENSEE. LICENSEE AND ITS USERS SHALL BE RESPONSIBLE FOR ALL LIABILITIES ARISING FROM ITS USE OF THE SOFTWARE AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY TICKETS, INFRACTIONS, PENALTIES OR ACCIDENTS ARISING FROM ANY USE OF VEHICLES BY LICENSEE OR ITS USERS.
12. U.S. GOVERNMENT. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), and all U.S. Government End Users acquire the Drivewyze Software with only those rights set forth herein.
13. EXPORT RESTRICTIONS. The Software is subject to applicable export control legislation in the United States and Canada, and Licensee agrees not to use or export the Software in contravention of applicable export control legislation in the United States and Canada.
14. TERMINATION. This Agreement may be terminated or suspended by a party by written notice to the other party if the other party is in material breach of any of the terms of this Agreement and such breach is not remedied within fifteen (15) days of notice of such breach. Either party may terminate this Agreement for convenience at any time by providing the other party with thirty (30) days prior written notice. Upon termination of this Agreement, Licensee must immediately cease using the Software and Services. Licensee shall remain liable to pay all amounts under this Agreement that are due or accrue due by the effective date of termination of this Agreement. Sections 6-16 of this Agreement shall survive any termination or expiration of this Agreement.
15. INDEMNIFICATION. Licensee shall defend, indemnify and hold Drivewyze and its affiliates harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys’ fees) arising from: (i) any violation of this Agreement, or of any state, provincial or federal laws, regulations or guidance, by Licensee or Licensee’s users; (ii) any use of the Software or Services, including but not limited to any death, injury or property damage resulting from any such use; (iii) any tickets, infractions, penalties or accidents arising from any use of vehicles by Licensee or users ; or (iv) any infringement or misappropriation of a third party’s copyrights, patents, trade secrets or other intellectual property rights, or any violation of any proprietary right or invasion of any privacy rights or laws, regulations or guidance.
16. GENERAL. This Agreement and documents referenced in this Agreement constitute the entire understanding of the parties concerning the subject matter of this Agreement and supersede all prior written or oral understandings. No delay or failure by Drivewyze to exercise any right under this Agreement, and no partial or single exercise of that right, nor acceptance of a partial payment, or the waiver of condemnation of any breach or default, shall constitute a waiver of that or any other right, unless otherwise expressly provided. The suppliers, agents, employees, distributors, and dealers of Drivewyze are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Drivewyze. Any waiver of the terms herein by Drivewyze must be in writing and signed by an authorized officer of Drivewyze and expressly reference the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement will be governed by Delaware law as applied to agreements entered into and to be performed entirely within Delaware, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods is disclaimed by the parties and does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in the State of Delaware or federal court for the District of Delaware. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Notices under this Agreement may be sent via email to Drivewyze to email@example.com and to the Licensee at the email address provided by Licensee when downloading the Software.