WHEREAS, the Company is the sole owner of all rights, title and interest in and to a software program commonly known as Truxio (the “Software”), which provides certain data, information and other services to companies operating in the transportation, trucking and/or freight businesses, whether online or through mobile applications or other devices; and
WHEREAS, the Company wishes to grant End User, and End User wishes to obtain from the Company, a subscription, limited, non-exclusive and non-transferable license to access and use the Software subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for and in exchange of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Grant of License. Subject to the terms and conditions of this Agreement, the Company hereby grants to End User a subscription, limited, non-exclusive and non-transferable license to access and use the Software solely in connection with the operation of the End User’s business.
2. Restrictions on Use. End User shall not: (i) sublicense, transfer, rent, assign, distribute, publish, display or otherwise make the Software or any aspects of the Software available to any third party for any reason; (ii) copy, modify, adapt or otherwise create derivative works from the Software; or (iii) reverse engineer, disassemble, decode, or otherwise attempt to translate or gain access to the source code of the Software.
3. Ownership and Proprietary Rights. End User acknowledges and agrees that all rights, title and interest in and to the Software, including any enhancements, corrections and modifications to the Software and any copyrights, patents, trade secrets, trademarks, service marks or any other intellectual property rights protecting or pertaining to any aspect of the Software, shall at all times remain the sole and exclusive property of the Company.
4. Collection and Use of End-User Information. End User acknowledges and agrees that in exchange for the Company providing End User with a subscription license to access and use the Software, the Company will have the right to collect, maintain, evaluate and use all personal and non-personal information and data obtained in connection with the End User’s use of the Software (the “End User Data”), subject to the terms of Section 5. The Company shall be the sole owner of any and all information, including, without limitation, data, analyses, statistics, reports, and trends generated or derived from, or otherwise related to, the End User Data. The Company shall have no obligation to retain any End User Data during or after the term of this Agreement. The Company will, however, provide any personal information of End User contained in the End User Data it has retained to the End User upon request. The End User hereby authorizes the tracking and/or monitoring of all devices on which the Software is installed or through which the Software or End User’s account is otherwise accessed and/or used. The End User shall be solely responsible for disclosing all terms and conditions regarding the use of the Software to its employees, contractors, agents, or any of its authorized users of the Software and the End User represents and warrants to the Company that End User will obtain all necessary legal consents from its employees, contractors, agents, or such of its authorized users of the Software.
5. Privacy Notice.
The Company will not sell, rent, license, transfer, share or otherwise disclose any personally identifiable information of the End User to any third party, except when such disclosure has been authorized by the End User, is required by applicable law, or is made to a party that controls, is controlled by or under common control with the Company or its successors.
Data collected from Truxio mobile app End Users may include and is limited to:
A. End User Profile data such as the first name, last name, email and phone number.
B. Images uploaded by the End User.
C. Background and foreground geo-location data may be collected in both precise (fine) and course (approximate) data types. Geo-location permissions are able to be enabled, changed and disabled by the End User either within the mobile application itself and/or on the device settings. Location data is shared with a 3rd party for the sole purpose of supporting basic app functionality. Specifically, we use a 3rd party API to geocode location data. No personally identifiable information is sent to 3rd parties, only location data.
All collected data is transmitted securely to our systems using encryption. Data is stored securely in our Virtual Private Cloud (VPC) environment and is encrypted when transmitted to or from their browser or mobile device. If transmission to 3rd parties is required, as in the case of location data geocoding, all data is encrypted in transit.
All End User data is retained indefinitely. In addition, End Users may request a copy of their personal data, or deletion of said data, by emailing firstname.lastname@example.org.
6. Disclaimer of Warranties. THE SOFTWARE IS LICENSED TO END USER “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ANY OF ITS OFFICERS, DIRECTORS, AGENTS, RESELLERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR FOR ANY LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF (OR INABILLITY TO USE) THE SOFTWARE EVEN IF THE COMPANY OR ITS OFFICERS, DIRECTORS, AGENTS, RESELLERS, SUPPLIERS OR LICENSORS WERE AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. Indemnification. End User shall indemnify, defend and hold harmless the Company and its officers, stockholders, employees, representatives and agents, and their respective successors and assigns, from and against any and all losses, claims, demands, damages, liabilities, costs or expenses of any kind (including attorneys’ fees), arising out of or relating to End User’s use or misuse of the Software or breach of this Agreement.
9. Termination. The Company may in its sole discretion terminate this Agreement at any time upon providing notice of termination to the End User. Upon termination of this Agreement, End User shall have no further rights to access or use of the Software after the termination date.
(a) Governing Law; Venue. This Agreement is governed by and shall be construed in accordance with the internal laws of the state of Delaware without regard to any choice or conflict of law provision or rule.
(b) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(c) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement.
(d) No Waiver. No consent or waiver, express or implied, by any party to or of any breach or default by any other party in the performance by such other party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligation of such party hereunder. Failure on the part of any party to complain of any act or failure to act of the other party or to declare such other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder. No consent or waiver shall, except as otherwise specifically provided in this Agreement, be effective unless it is in writing and is signed by or on behalf of the party asserted to have granted such consent or waiver.
(e) Amendments. This Agreement may be amended only by a written instrument signed by all of the parties.
(f) Assignment. End User may not assign this Agreement or any of the rights, interests and obligations of End User hereunder without the prior written consent of the Company.
(g) Captions. The captions and headings of the Sections and paragraphs provided in this Agreement are intended for descriptive and reference purposes only and are not intended to limit the applicability of the terms of any such Section or paragraph.