LAST UPDATED: JANUARY 30, 2020 (see current version)
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING AGREE YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR AN ENTITY FOR WHOSE BENEFIT THIS SERVICE IS BEING USED, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. IF YOU HAVE A WRITTEN AGREEMENT WITH ONFLEET FOR THESE SERVICES, THEN THAT AGREEMENT WILL GOVERN, AND THE AGREEMENT BELOW WILL NOT APPLY.
This agreement is between Onfleet, Inc., a Delaware corporation (Onfleet), and the customer agreeing to this agreement (Customer).
- DELIVERY MANAGEMENT SERVICE. This agreement provides Customer with access to and usage of an Internet-based delivery management software service as specified on an order and as further outlined at: onfleet.com (Service). All Service mobile app users need to download and install the mobile app that accompanies the Service, and usage of such mobile apps are governed under the terms of the end user license agreement provided with that app.
USE OF SERVICE.
- Trial. If Customer has not agreed to pay for the Service, then Customer is under a trial period as designated by Onfleet. During the trial period, the Service is provided AS IS. All data will be deleted at the end of trial period, unless Customer converts to a paid account.
- Customer Owned Data. All data uploaded by Customer remains the property of Customer, as between Onfleet and Customer (Customer Data). Customer grants Onfleet the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export or print reports regarding certain Customer Data as allowed by functionality within the Service.
- Contractors and Employee Access and Usage.Customer may allow its contractors (including without limitation, third party logistics companies) and employees to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors and its employees.
- Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Onfleet promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s User Guide and applicable law.
- Onfleet Support. Onfleet must provide customer support for the Service under the terms of Onfleet’s Support and Maintenance Terms (Support), and is incorporated into this agreement for all purposes.
- BETA RELEASES
- From time to time, Onfleet may grant Customer access to “alpha”, “beta”, or other early-stage products (“Beta Releases“). While Onfleet may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH ONFLEET WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. Onfleet makes no promises that future versions of a Beta Release will be released. Onfleet may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Onfleet's sole discretion, without liability.
SERVICE LEVEL AGREEMENT & WARRANTY.
- Warranty. Onfleet warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages, force majeure, and outages that result from any Customer technology issues or third party vendor issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
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5% for each full hour of an outage (beyond the warranty)
- LIMITED REMEDY. Customer’s exclusive remedy and Onfleet’s sole obligation for its failure to meet the warranty in a(i) above will be for Onfleet to provide a credit for the applicable month, as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies Onfleet of such breach within 30 days of the end of that month.
- DISCLAIMER. ONFLEET DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ONFLEET TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, ONFLEET DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
- PAYMENT. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. No refunds of prepaid fees, unless otherwise provided in this agreement. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. Onfleet may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances, the issuer of Customer’s credit card may charge Customer a foreign transaction fee or related charges, which Customer will be responsible to pay.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Onfleet’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and non-public pricing information).
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
- Reservation of Rights. The software, workflow processes, user interface, designs, know-how and other technologies provided by Onfleet as part of the Service are the proprietary property of Onfleet and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Onfleet. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Onfleet reserves all rights unless expressly granted in this agreement.
- Customer may not (i) sell, resell, rent or lease the Service; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
- Aggregate Data. During and after the term of this agreement, Onfleet may use and retains all rights in all non-personally identifiable data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other internal and external business purposes.
TERM AND TERMINATION.
- Term. This agreement continues until all orders have expired or are terminated under Section 8(b) below.
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
- Return of Customer Data. Within 60-days after termination, upon request Onfleet will make the Service available for Customer to export such data as provided in Section 2(b).
After such 60-day period, Onfleet has no obligation to maintain the Customer Data and may destroy it.
- Return Onfleet Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Onfleet for any unpaid amounts, and destroy or return all property of Onfleet. Upon Onfleet’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
- Suspension for Violations of Law. Onfleet may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. Onfleet will attempt to contact Customer in advance.
- EXCLUSION OF INDIRECT DAMAGES. Onfleet is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits), even if it knows of the possibility of such damage or loss.
- TOTAL LIMIT ON LIABILITY. Onfleet’s total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
- Defense of Third Party Claims. Onfleet will defend or settle any third-party claim against Customer to the extent that such claim alleges that the Onfleet technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies Onfleet of the claim in writing, cooperates with Onfleet in the defense, and allows Onfleet to solely control the defense or settlement of the claim. Costs. Onfleet will pay infringement claim defense costs incurred as part of its obligations above, and Onfleet negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then Onfleet may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Onfleet determines that none of these are reasonably available, then Onfleet may terminate the Service and refund any prepaid and unused fees. Exclusions. Onfleet has no obligation for any claim arising from: Onfleet’s compliance with Customer’s specifications; A combination of the Service with other technology where the infringement would not occur but for the combination; Use of Customer Data; or Technology not provided by Onfleet. This section contains Customer’s exclusive remedies and Onfleet’s sole liability for intellectual property infringement claims.
- Customer Indemnity. To the extent allowed by law, if any third-party brings a claim against Onfleet related to Customer acts, omissions, data or information within the Services, Customer must defend, indemnify and hold Onfleet harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
- GOVERNING LAW AND ARBITRATION. This Agreement is governed by the laws of California, without regard to conflict of laws principles. Any dispute between Customer and Onfleet arising out of or related to this agreement must be determined by binding arbitration in San Francisco, CA, US, under the then current commercial of the American Arbitration Association or international rules of The International Centre For Dispute Resolution, depending on whether Customer is located in the United States or outside the United States. The decisions of the arbitrators may be entered in any court of competent jurisdiction. Nothing in this Agreement prevents either party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.
- Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it or Customer agrees to a new agreement or modification as provided by an online process designated by Onfleet, and no waiver is effective unless the party waiving the right signs a waiver in writing.
- No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
- Money Damages Insufficient Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
- No Additional Terms. Onfleet rejects additional or conflicting terms of any Customer form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- Survival of Terms Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Feedback. If Customer provides feedback or suggestions about the Service, then Onfleet (and those it allows to use its technology) may use such information without obligation to Customer.
If you have any questions or concerns about our Services or these Terms, you may contact us at:
703 Market Street, Floor 20
San Francisco, CA 94103
or by email at email@example.com.