Effective Date: As of September 1, 2014.
IMPORTANT – READ CAREFULLY. THIS IS A LEGAL AGREEMENT BY AND BETWEEN (1) YOU THE LICENSEE, WHO IS THE PERSON, COMPANY, OR ENTITY UTILIZING “DISPATCHMAX SOFTWARE” – FLEET AND TRANSPORTATION MANAGEMENT SOFTWARE (“DISPATCHMAX SOFTWARE”) – AND (2) FIRST BIT CANADA INC. (“FBC”). BY CLICKING THE “I ACCEPT” BUTTON, OR BY USING DISPATCHMAX SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). YOU FURTHER AGREE THAT YOUR EMPLOYEES OR ANY PERSON YOU AUTHORIZE TO USE DISPATCHMAX SOFTWARE WILL ALSO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, THEN DO NOT USE DISPATCHMAX SOFTWARE.
FBC owns and shall retain all right, title, and interest in and to DispatchMax Software, any updates or maintenance releases, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto. DispatchMax Software is protected by the copyright laws of Canada, international copyright treaties and conventions, and other laws, and all rights are reserved.
1. Grant. FBC hereby grants Licensee, and Licensee hereby accepts a non-exclusive, nonsublicensable, non-transferable, fully revocable license to use DispatchMax Software solely for internal use and operation upon the terms and conditions contained in this Agreement (“License”). You may use and access DispatchMax Software according to the license level purchased by you from any number of virtual machines or physical computing devices owned, leased, or otherwise controlled by you. For purposes of this Agreement, “use” of DispatchMax Software means accessing DispatchMax Software over a computer network. DispatchMax Software may not be used by a greater number of persons, agents, or employees than you have paid a License fee for. You acknowledge that FBC makes no representation as to the compatibility of DispatchMax Software with any specific operating environments or computing device.
2. Restrictions. The License is granted solely to Licensee, and not to any parent, subsidiary, or affiliate of Licensee. All rights not expressly granted hereunder are reserved to FBC. The License does not include (a) maintenance, support, upgrades, or modifications to DispatchMax Software other than as set forth herein, (b) derivative products developed by FBC or anyone else to whom FBC may license DispatchMax Software, or (c) a license or transfer of any intellectual property rights owned or controlled by FBC or any FBC affiliate, subsidiary, or parent. Licensee shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from, or any internal data files generated by, DispatchMax Software, rent, lease or loan DispatchMax Software, or use DispatchMax Software in any manner that constitutes a breach of this Agreement or violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
3. Use Reporting, License Violations and Remedies. FBC reserves the right to gather data on your usage of DispatchMax Software to ensure that our products are being used in accordance with the terms of this Agreement. Any unauthorized use shall be considered by FBC to be a violation of this Agreement. FBC reserves the right to remedy violations immediately upon discovery by any means necessary.
4. License Automatic Update and Expiration. Your License may include an expiration date that can result in the termination of the License. If your login identification is stolen, or if you suspect any improper or illegal usage of your License outside of your control you should promptly notify FBC of such occurrence. A replacement login will be issued to you and the suspect login will immediately be terminated. For your License to remain active, your monthly payment for each month must be processed prior to the expiration date in order for the License updates to be performed. For your convenience FBC provides License expiration warnings in the product interface should there be any issues that would cause the product License to expire. It is your responsibility to contact FBC regarding any potential expiration that you deem inappropriate. FBC is not liable for any damages or costs incurred in connection with the expiring Licenses.
5. Grant of License to FBC. Licensee exclusively owns all rights in and to information it stores on DispatchMax Software (“Information”). FBC needs a limited license from Licensee to use (i.e., display, perform, and distribute) Information to make DispatchMax Software available to you. By providing Information, you grant to FBC a limited, perpetual, irrevocable, non-exclusive, fully-paid, royaltyfree, sub-licensable, transferable and worldwide license to use, modify, perform, display, reproduce and distribute the Information for the sole purpose of operating DispatchMax Software and providing related services. FBC shall also have an unlimited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide license to use, incorporate into DispatchMax Software, modify, perform, display, reproduce and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the operation or features of DispatchMax Software.
6. Liability for Third Parties. Should you make available any software, login identifications, or security credentials, or other means of access to DispatchMax Software to third parties, whether deliberately or through error or omission, you agree that any and all use of DispatchMax Software by such third parties, regardless of whether such use is specifically authorized or unauthorized by you, shall be legally attributed to you, and you hereby accept liability for any and all such use.
3. LICENSE FEES. DispatchMax Software will be available to you for use upon your payment of the applicable License fee and your receipt of one or more login identifications. Upon acceptance of this Agreement, you may use your License by paying the requisite License fees applicable to your level of use, using the procedure set forth on the DispatchMax Software website (www.dispatchmax.com). The License fees paid by you are paid in consideration of the License granted under this Agreement. FBC does not refund License fees. By accepting this Agreement you fully understand that once the License fee payment is made to FBC you will have no recourse for receiving a refund of any part of the fees.
4. TERM AND TERMINATION. The term of this Agreement commences as of the Effective Date, or upon your accessing, and using DispatchMax Software even if you have not expressly accepted this Agreement, and shall continue unless and until either Party provides written notice to the other terminating this Agreement, or if Licensee makes an assignment or other transfer of this Agreement or the License, by operation of law or otherwise. Upon the termination of this Agreement, all License rights granted hereunder shall terminate in full and without notice, and Licensee shall immediately cease use of DispatchMax Software. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this Agreement, including but not limited to indemnification, shall so survive.
5. OPEN SOURCE SOFTWARE. DispatchMax Software may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third party open source licenses, and not the terms of this Agreement. If any such license requires FBC to deliver the source code for such component to Licensee, FBC shall do so upon request at a nominal fee.
6. CONFIDENTIALITY. Licensee will not disclose DispatchMax Software, or the terms and conditions or existence of this Agreement to any third party without FBC’s express prior written consent.
7. INDEMNIFICATION BY LICENSEE. Licensee shall indemnify, defend, and hold harmless FBC (and its officers, directors, employees, and agents) from and against any and all claims, suits, liability, damages, losses, costs, or expenses (including reasonable attorneys’ fees) which result from claims that any modifications Licensee makes to DispatchMax Software or any combination of DispatchMax Software with software or other items not approved by FBC infringes or violates any third party intellectual property right. In case any action or proceeding is brought against FBC by reason of any such claim, demand, action, damage, loss, liability, cost, or expense, Licensee’s duty to defend shall begin upon receipt of written notice identifying the allegations that give rise to this duty to defend and shall be coextensive with Licensee’s indemnification obligation.
8. NO WARRANTIES. FBC LICENSES DISPATCHMAX SOFTWARE TO LICENSEE ON AN “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, FBC DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO DISPATCHMAX SOFTWARE. LICENSEE ACKNOWLEDGES THAT THE OPERATION OF DISPATCHMAX SOFTWARE MAY NOT BE UNINTERRUPTED OR ERROR-FREE, AND THAT ERRORS MAY NOT BE CORRECTED. FBC IS NOT RESPONSIBLE IN ANY WAY FOR ANY INTERFERENCE, ERRORS, OR PREVENTION OF LICENSEE’S ACCESS TO OR USE OF DISPATCHMAX SOFTWARE. FBC IS NOT YOUR ACCOUNTANT AND USE OF DISPATCHMAX SOFTWARE DOES NOT CONSTITUTE THE RECEIPT OF ACCOUNTING ADVICE. IF YOU HAVE ANY ACCOUNTING QUESTIONS, PLEASE CONTACT AN ACCOUNTANT. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE THAT DISPATCHMAX SOFTWARE MEETS THE NEEDS OF YOUR BUSINESS AND IS SUITABLE FOR THE PURPOSES FOR WHICH IT IS USED. YOU REMAIN SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE ACCOUNTING, TAX, AND OTHER LAWS. IT IS YOUR RESPONSIBILITY TO CHECK THAT THE STORAGE OF AND ACCESS TO YOUR DATA VIA DISPATCHMAX SOFTWARE AND THE WEBSITE WILL COMPLY WITH LAWS APPLICABLE TO YOU AND YOUR BUSINESS (INCLUDING ANY LAWS REQUIRING YOU TO RETAIN RECORDS).
10. Backup of Data. Licensee shall maintain copies of all data and information inputted by Licensee into DispatchMax Software. FBC adheres to reasonable practices and procedures to prevent data and information loss, but does not make any guarantees that there will be no loss of data or information. FBC expressly excludes and disclaims any liability for any loss of Licensee’s data and information, no matter how such loss was caused.
11. PRIVACY AND DATA SECURITY. FBC agrees that it shall use best efforts to (i) keep and maintain Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and (ii) use and disclose Information solely and exclusively for the purposes for which the Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Information for FBC’s own purposes or for the benefit of anyone other than Licensee, in each case, without Licensee’s prior written consent.
12. MAINTENANCE AND SUPPORT. FBC will provide maintenance and support services in accordance with the terms of the plan selected by Licensee. FBC’s obligations, if any, to provide maintenance and support is subject to the following: (a) Licensee shall provide FBC with sufficient access to its account and personnel to duplicate and resolve errors; (b) Licensee shall provide supervision, control and management of the use of DispatchMax Software; (c) Licensee shall document and promptly report all errors or malfunctions in DispatchMax Software to FBC, and (d) Licensee shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from FBC. Notwithstanding the foregoing, FBC shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to DispatchMax Software.
13. NO UNLAWFUL OR PROHIBITED USE. As a condition of your use of DispatchMax Software, you warrant that you will not use DispatchMax Software for any purpose that is unlawful or prohibited by this Agreement. You may not use DispatchMax Software in any manner which could damage, disable, overburden, or impair DispatchMax Software or interfere with any other party’s use and enjoyment of DispatchMax Software. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through DispatchMax Software. The following is a non-exclusive list of actions that FBC considers to be inappropriate and thus prohibited. The examples identified in this list are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact FBC.
- Using DispatchMax Software for any activity that violates any local, provincial, federal or international law, order or regulation.
- Using DispatchMax Software to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting or otherwise) which is inappropriate, profane, obscene, indecent, pornographic, libelous, harassing, constitutes a threat or encourages bodily harm or destruction of property, or otherwise objectionable or unlawful.
- Using DispatchMax Software to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting, or otherwise) that infringes copyright, trademark, patent, trade secret, or other proprietary rights of any third party. You assume all risks regarding the determination of whether material is in the public domain.
- Using DispatchMax Software to make fraudulent offers to buy or sell products, items, or services, or to advance any type of financial/soliciting scams including, but not limited to, “pyramid schemes,” “Ponzi schemes,” “mail bombing,” and “chain letters.”
- Using DispatchMax Software to harm or attempt to harm a minor, including, but not limited to, hosting, possessing, distributing, or transmitting child pornography or other material that is unlawful.
- Any fraudulent activities, including impersonating any person or entity or forging anyone else’s digital or manual signature.
- Disrupting or interfering with DispatchMax Software in any way, including through the uploading of files which contain viruses, worms, “Trojan horses,” or other software or programs that may be damaging to DispatchMax Software or another user’s computer.
- Using DispatchMax Software to transmit, or to facilitate the transmission of, any unsolicited commercial e-mail or unsolicited bulk e-mail.
- Using DispatchMax Software to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of DispatchMax Software or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
- Using DispatchMax Software to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
- Reselling DispatchMax Software.
- Using DispatchMax Software for any activity that adversely affects the ability of other people or systems to use DispatchMax Software or the Internet.
- Using DispatchMax Software in any way that could damage or impair FBC’s reputation or goodwill.
14. INJUNCTIVE RELIEF. Licensee understands and agrees that its breach of this Agreement will cause FBC irreparable damage for which recovery of money damages would be inadequate, and that FBC shall therefore be entitled to obtain timely injunctive relief to protect FBC’s rights under this Agreement in addition to any and all remedies available at law, without the necessity of a bond.
15. COPYRIGHT AND TRADEMARK NOTICES. All trademarks are owned by FBC and their affiliates. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to DispatchMax Software are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. Other than as expressly permitted in the “LICENSE” Section above, the copying, redistribution, use or publication by you of any such matters or any part of DispatchMax Software, is strictly prohibited. You do not acquire ownership rights to any article, document or other materials viewed through DispatchMax Software. The posting of information or materials on DispatchMax Software does not constitute a waiver of any right in such information and materials. Some of the content on DispatchMax Software may be the copyrighted work of third parties. Nothing contained in DispatchMax Software should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by FBC or any third party.
16. CHANGES TO THIS AGREEMENT. Due to changing technological and marketing demands, FBC reserves the right to revise, amend, or modify this Agreement from time to time. Notice of any revision, amendment, or modification will be posted on the website through which Licensee accesses DispatchMax Software, and/or by email to your primary email, and/or in mailings to the address you provide, and will be effective on the date noted in the posting. This Agreement may not be amended or modified by Licensee except by means of a written document signed by both Licensee and an authorized representative of FBC. By continuing to use DispatchMax Software after the amendments are effective, Licensee accepts and agrees to abide by them.
17. GENERAL PROVISIONS. This Agreement is governed by and shall be construed in accordance with the federal laws of Canada. This Agreement is the entire agreement between the parties on the subject matter hereof and supersedes all prior communications or agreements, written or oral. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint ventures of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Licensee may not assign or transfer this Agreement (by operation of law or otherwise) without the prior written consent of FBC and any prohibited assignment or transfer will be null and void, but FBC may freely assign or transfer this Agreement. This Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.