LAST UPDATED: APRIL 24, 2020 (see current version)
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHERWISE ASSENTING TO THIS AGREEMENT 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 the Onfleet mobile applications (collectively, Service).
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 may 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.
- API. Onfleet provides access to its application-programming interface (API) as part of the Service for no additional fee. Subject to the other terms of this agreement, Onfleet grants Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API.
- Customer may not use the API in a manner--as reasonably determined by Onfleet--that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, Onfleet can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
- Onfleet may change or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but Onfleet will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Onfleet may add new endpoints or fields in API results without prior notice to Customer.
- The API is provided on an AS IS basis. Onfleet has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
- 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.
| || |
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.
- Security Measures. In order to protect Customer’s Confidential Information and Customer Data, Onfleet will (i) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such information and data; (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designate an employee or employees to coordinate implementation and maintenance of its security measures; and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of information and data that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks.
- Notice of Data Breach. If Onfleet knows that Customer Confidential Information or Customer Data has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, Onfleet will alert Customer of any such data breach within two business days, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. Onfleet will give highest priority to immediately correcting any data breach and devote such resources as may be required to accomplish that goal. Onfleet will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, Onfleet will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. Onfleet will provide Customer with information about what Onfleet has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Confidential Information.
- 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.
- Mobile Software. Onfleet may make available software to access the software via a mobile device. To use the software, Customer must have a mobile device that is compatible with the software. Onfleet does not warrant that the software will be compatible with Customer's mobile device. Customer may use mobile data in connection with the software and may incur additional charges from Customer's wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that Onfleet may, from time to time, issue upgraded versions of the software, and may automatically electronically upgrade the version of the software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.
- CCPA. To extent the California Consumer Privacy Act of 2018 (as amended from time to time, the CCPA) applies to the Customer Data and for purposes of this section:
Onfleet shall not retain, use, or disclose Customer Personal Information for any purpose other than for the specific purpose of performing the Services, or as otherwise permitted by CCPA, including retaining, using, or disclosing the Customer Personal Information for a commercial purpose (as defined in CCPA) other than providing the Services. Onfleet shall not (a) sell any Customer Personal Information; (b) retain, use or disclose any Customer Personal Information for any purpose other than for the specific purpose of performing the Services, including retaining, using, or disclosing the Customer Personal Information for a commercial purpose (as defined in the CCPA) other than provision of the Services; or (c) retain, use or disclose the Customer Personal Information outside of the Business Relationship or in a manner that violates the Agreement. Onfleet hereby certifies that it understands its obligations under this clause and will comply with them.
- “Business Relationship” means the direct business relationship between Customer and Onfleet, which encompasses the parties’ use of Customer Data as contemplated by the agreement.
- “Customer Data” means any data that Onfleet receives or collects directly or indirectly from Customer and/or Customer’s customers or users under the agreement.
- “Customer Personal Information” means any Customer Data that constitutes Personal Information as defined in, and which is subject to, the CCPA.
- “Services” means Onfleet’s performance of its obligations and exercise of its rights under the agreement and Onfleet’s performance of the Services.
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.
The following applies to any Onfleet Mobile Software Customer acquires from the Apple App Store (App Store Software):
- Acknowledgment. This agreement is between Onfleet and Customer only, and not with Apple, and Onfleet, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).
- Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
- Maintenance and Support. Onfleet is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. Onfleet and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.
- Warranty. Onfleet is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software (if that purchase price was paid to Apple on behalf of Onfleet to Customer; and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is Onfleet’s sole responsibility.
- Product Claims. Onfleet and Customer acknowledge that Onfleet, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the HealthKit and HomeKit frameworks. This agreement does not limit Onfleet 's liability to Customer beyond what is permitted by applicable law.
- Intellectual Property Rights. Onfleet and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, Customer, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
- Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address. Company's name is Onfleet, Inc. and address is 703 Market Street, 20th Floor San Francisco, CA 94103, and the contact information (phone number; email address) to which any Customer questions, complaints, or claims with respect to the App Store Software should be directed as follows: firstname.lastname@example.org
- Third-Party Beneficiary. Onfleet and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.