This Software Subscription Service (SaaS) Agreement (the “Agreement”)
sets forth the obligations and conditions between you (“Client”) and EZLOGZ, Inc., a Washington Corporation (“Provider”), relating to your use of the Services defined herein. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.
BY CLICKING THE “I AGREE” ICON BELOW, AND/OR BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, DO NOT USE THE SERVICES AND EXIT IMMEDIATLEY BY CLICKING “I DO NOT AGREE” ICON BELOW.
- Provider is the owner of certain proprietary computer software known as EZLOGZ that is used to provide social chatting, trip planning, mapping services, logistics planning, travel tracking, and various other services relating to monitoring and reporting information from scanners known as “ELD” or “AOBRD” scanners (the “Software”).
- Provider provides and sells subscriptions for subscribers to access and use the Software via EZLOGZ.com or any website notified to the subscribers from time to time (the “Services”).
- Provider also provides “ELD” or “AOBRD” scanners (the “Scanner”) for use with the Software by Client. The Scanners shall be provided pursuant to the Lease Agreement to be executed contemporaneously with this Agreement. Client desires to use the Services for Client’s internal business purposes, including specifically use by Client’s employees, independent contractors and/or Client’s own use (“Authorized Users”) to comply with trucking regulations, travel needs, and monitoring services, pursuant to the terms and conditions set forth herein.
- Provider is willing to provide access to the Services for Client’s internal business use as set forth above pursuant to the terms and conditions set forth herein.
- Provider and Client acknowledge and agree that this Agreement shall be effective and in force immediately upon the date that Client clicks the “I Agree” icon below (the “Effective Date”).
NOW THEREFORE, in consideration for the mutual promises contained
herein and other good and valuable consideration, the parties agree as follows:
- Description of Service
- The "Service(s)" means Ezlogz's electronic logs and fleet management software (including the Site, our mobile device application ("App"), and any software embedded in the Electronic Logging Scanner) ("Software"), the hardware (including the Electronic Logging Scanner ("ELD"), cellular-connected Electronic Logging Scanner ("cELD") and cable sets delivered with an ELD or cELD) ("Hardware"), the Premium Services (as defined in Section 9 of these Terms), and all of Our Content (as defined below). The Service does not include Your Data (as defined below) or any software application or service that is provided by you or a third party, which you use in connection with the Service, whether or not Ezlogz designates them as official integrations (each a "Non-Ezlogz Product"). Any modifications and new features added to the Service are also subject to these Terms. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Ezlogz, including the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, de-identified and aggregated data collected by the Services, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services ("Our Content").
- Agreement to Terms
PLEASE BE AWARE OF THE AGREEMENT TO ARBITRATE IN THESE TERMS AS IT REQUIRES ARBITRATION TO RESOLVE DISPUTES, IN MOST CASES, ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS AND CLASS ACTIONS.
- Your Access and Use of the Services
- You may access and use the Services only for lawful, authorized purposes and you shall not misuse the Services in any manner (as determined by Ezlogz in its sole discretion). See Section 11 below for further provisions outlining prohibited uses of the Services. You shall comply with any codes of conduct, policies, storage limitations, or other notices Ezlogz provides you or publishes in connection with the Services from time to time, but if any of those policies materially change the Terms, we will provide you with reasonable notice as provided in Section 5 below.
- Any Software or Hardware or any of Our Content that may be made available by or on behalf of Ezlogz in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to these Terms, Ezlogz only grants you a personal, non-sublicensable, non-exclusive and revocable license to use the object code of any Software solely in connection with the Service. Any rights not expressly granted herein are reserved.
- Subject to your compliance with these Terms, Ezlogz grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App. Ezlogz reserves all rights in and to the App not expressly granted to you under these Terms.
- You may not share your Account information with, or allow access to your Account by, any third party. You are solely responsible for all activity that occurs under your access credentials, whether or not a third party accesses your Account.
- Notwithstanding Section 3.4, you may allow other certain users, e.g. employees, independent contractors, and other third parties, ("End Users") to access the Services in accordance with these Terms. To the extent that you create any Accounts for other users of the Services, direct us to create any Accounts for End Users, or allow End Users to access the Services, you and your End Users are responsible for all End Users' activity and ensuring that they are in compliance with these Terms.
- You may specify certain End Users as "Administrators" through the administrative console. Administrators may have the ability to access, disclose, restrict or remove Your Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. Ezlogz's responsibilities do not extend to the internal management or administration of the Services, and you are responsible for all Administrators' activities and ensuring that they are in compliance with these Terms.
- To the extent that you allow End Users and Administrators to access the Services or create, or direct us to create, any Accounts for other users, you are responsible for (i) maintaining the confidentiality of usernames and passwords, (ii) managing access to End User Accounts and other Accounts which you create, and (iii) ensuring that all End Users and users of other Accounts which you create are in compliance with these Terms.
- To the extent that you allow End Users to use the Hardware, you and your End Users are solely responsible for such End Users' use of the Hardware, including any damage to or misuse of such Hardware.
- You agree to prevent any unauthorized access or use by End Users or other users of Accounts and terminate any unauthorized use of or access to the Services.
- You may not sell, resell or lease the Services unless you have entered into a separate agreement with Ezlogz to do so.
- You shall promptly notify Ezlogz if you learn of a security breach related to the Service.
- You assume sole responsibility for your driving logs and for complying with all state DOT and federal FMSCA rules and regulations including, but not limited to, FMCSA Hours of Service of drivers (HOS)
- In order to FMSCA &DOT compliant, the client is responsible to keep the Scanner firmware and Ezlogz Application up to date.
- Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data
- Ezlogz takes the privacy of its users very seriously.
- Your acceptance of these Terms does not grant us full ownership of all of Your Data. As between Ezlogz and you, you are only granting us the rights and licenses necessary to provide our Services to you and any other services for which you have signed up through any of our resellers, business partners and affiliated businesses. In order for us to provide the Services to you, we need to be able to transmit, store and copy Your Data in order to display it to you and to those with whom you share it, to index it so you are able to search it, to make backups to prevent data loss, to send your submissions and messages through our platform, and so on.
For example, if you submit documents or send messages to a Fleet User, you are granting us a royalty-free, perpetual, sublicensable, irrevocable and worldwide license for us to transform, modify, reproduce, display, perform and distribute such documents and messages for your and the Fleet User's use of the Services.
Your acceptance of these Terms gives us the permission to do so and grants us any such rights and licenses necessary to provide the Service to you, and any other services or products for which you have signed up through any of our resellers, business partners and affiliated businesses. For example, if you have agreed to share any of Your Data, or any other data we collect in connection with your use of the Services, with one of our partners or affiliates or other third party, you grant us the rights and licenses to share or deliver such data. This permission includes allowing us to use third-party service providers (such as Amazon Web Services) in the operation and administration of the Service and the rights granted to us are extended to these third parties to the degree necessary in order for the Service to be provided.
If you authorize a third party to receive Your Data, via our Services, email, agreement, or other form of consent, we may provide Your Data to a third party. If we have an agreement with such third party to market the Services or otherwise provide services or products to you, either jointly or separately, we may rely on a representation from that third party that you have authorized such third party to receive Your Data. When you choose to share Your Data with a third party, we are no longer responsible for Your Data or such third party's use of Your Data.
For clarification purposes, you grant us the necessary licenses to Your Data for us to create aggregated and/or de-identified data for our use in providing the Services and otherwise. Notwithstanding anything else in these Terms, we may use and sell such aggregated and/or de-identified data, which is compiled from our users, and does not directly identify you, for any purpose we see fit.
- You are solely responsible for your conduct (including by and between all users), the content of Your Data, and all communications with others while using the Services. You represent and warrant that you own all Your Data or you have all rights that are necessary to grant us the license rights in Your Data under these Terms. You also represent and warrant that neither Your Data, nor your use and provision of Your Data, nor any use of Your Data by Ezlogz on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information you and your users may be able to access using the Services. Should you be in violation of these Terms, we have the right to remove any of Your Data causing such violation.
- The Services provide features that allow you and your End Users to share Your Data and other materials with others. When you choose to share Your Data through our Services, you are granting us the necessary rights and licenses to do so. Please consider carefully what you allow to be shared.
- While you retain ownership in all rights to your feedback and suggestions, you agree that by submitting suggestions or other feedback regarding our Services or Ezlogz, Ezlogz may use such feedback for any purpose without compensation to you. We appreciate all of your feedback and suggestions, and you can submit feedback by emailing us at feedback@Ezlogz.com.
- The Children's Online Privacy Protection Act ("COPPA") requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register or sign up for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at support@Ezlogz.com.
- Changes and Modifications to Terms of Service
- We may modify these Terms at any time, in our sole discretion. If we do so, we'll let you know either by posting the modified Terms on the Site or through other communications. It's important that you review the modified Terms because if you continue to use the Services after we've let you know that the Terms have been modified, you are indicating to us that you agree to be bound by the modified Terms. If you don't agree to be bound by the modified Terms then you may no longer use the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
- Limitations on Services and Third-Party Relationships
- Ezlogz is not a party to any relationships or agreements between you and any third parties for the performance of any duties between the parties and does not have control over and disclaims all liability for the quality, timing, legality, failure to provide, or any other aspect whatsoever of any professional duties performed by you or other users of the Services. Ezlogz acts only as an interface to facilitate -- not to direct or control -- communications between users of Ezlogz's Services.
- Who May Use the Services
- You may use the Services only if you are 18 years or older and capable of forming a binding contract with Ezlogz and are not barred from using the Services under applicable law.
- If you want to access and use the Services, you'll have to create an account ("Account"). You can do this via the Services. It's important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don't, we might have to suspend or terminate your Account. You agree that you won't disclose your Account password to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, whether or not you know about them.
- Warnings and Awareness About Connections Between Drivers and Companies
- The Services enable a commercial motor vehicle driver ("Driver") to connect directly with a motor carrier ("Company"), allowing Drivers to send messages and automatically share their driving logs, documents, location information and other data ("Driver Data") with the Company. When Drivers connect with a Company through the Services, the Company's employees and other third parties who are also connected to that Company ("Fleet Users") may access Driver Data for all Drivers who are connected to that same Company.
- If a Driver connects with a Company, the Driver should be aware that the Driver's Driver Data will be automatically shared with that Company and its Fleet Users and that Company and its Fleet Users will be able to send messages to that Driver. Please consider carefully the parties with whom you choose to connect and what you choose to share. Ezlogz's role in this process is solely to provide the technology and platform that enables these Services. Please see the rest of these Terms, for further specific provisions outlining your responsibility for anything shared through the Services.
- Subscription Plans.Client shall have the choice of three Subscription plans as set forth below. All terms and conditions apply to both Subscription options and Client shall make the selection of its desired option through the mobile application “EZLOGZ” or via EZLOGZ.com. Service will not begin until Client has received, installed, and activated the Scanner(s).
- IMPORTANT CREDIT CARD INFORMATION. All Clients are required to provide a valid credit card upon entering in to this Agreement. Client’s credit card will not be kept by Provider but will be kept securely by Provider’s independent third-party merchant services processing company. Client agrees that Provider is authorized to process all monthly fees provided for in this Agreement to Client’s stored credit card on the specified due date. Client further agrees and acknowledges that should Client cancel the Agreement or fail to return the Scanner, Provider is authorized to charge all termination fees to the card on file. Client may update the card on file at any time which may result in a $1.00 charge for card verification. In that instance the charge will be credited to the users account with Ezlogz. Failure to maintain a valid credit card on file shall be grounds for termination of the Agreement in Provider’s sole discretion.
- Non-fee Services. Client shall be entitled to use all social chatting, mapping, and trip planning services on the mobile application “EZLOGZ” for free. This is only for functions which do not interact or otherwise use the Scanner(s)
- Monthly Plan. Client can choose to subscribe to the Software for a monthly fee of $29.99 per month per Scanner. Client will be required to pay the first and last month’s fee ($59.98) at the beginning of service This enable Client to access and use the Scanner as required under the law. Client is responsible for ensuring all usage of the Software and Scanner is done so in compliance with all federal and state regulations. The Monthly Plan has no annual contract but is subject to a sixty (60) day notice of cancellation from the Client. Client will still have access to the Service and will be charged the Subscription Fee for the sixty (60) period after cancellation is sent. Upon cancellation the Scanner must be returned within seven (7) days and will be subject to a $34.99 cancellation fee in addition to the charges as set forth in Section 10 below. The Subscription Fee for the first Subscription Period of the term of this Agreement shall be paid on the Effective Date.
- Annual Plan. Client can choose to subscribe to the Software for a monthly fee of $29.99 per month per Scanner for 12 months. Under this plan, Client will receive one (1) month free and will only be billed for 11 months. The free month is at the end of the contract so the entire annual fee will be billed at the start of the service. This enables Client to access and use the Scanner as required under the law. Client is responsible for ensuring all usage of the Software and Scanner is done so in compliance with all federal and state regulations. The Annual Plan subject to a sixty (60) day notice of cancellation from the Client. Client will still have access to the Service and will be charged the Subscription Fee for the sixty (60) period after cancellation is sent. Upon cancellation the Scanner must be returned within seven (7) days and will be subject to a cancellation fee of $34.99 in addition to charges as set forth in Section 10 below. The Subscription Fee for the first Subscription Period of the term of this Agreement shall be paid on the Effective Date. At the expiration of the contract if no cancellation notice has been provided by Client, the card on file will be charged and the Client’s plan will be renewed for an additional one year term.
- Two Year Plan. Client can choose to subscribe to the Software for a monthly fee of $29.99 per month per Scanner for 24 months. Under this plan, Client will receive three (3) months free and will only be billed for 21 months. The free months are at the end of the contract so the entire fee will be billed at the start of the service. This enable Client to access and use the Scanner as required under the law. Client is responsible for ensuring all usage of the Software and Scanner is done so in compliance with all federal and state regulations. The Two Year Plan subject to a sixty (60) day notice of cancellation from the Client. Client will still have access to the Service and will be charged the Subscription Fee for the sixty (60) period after cancellation is sent. Upon cancellation the Scanner must be returned within seven (7) days and will be subject to a cancellation fee of $34.99 in addition to the charges as set forth in Section 10 below. The Subscription Fee for the first Subscription Period of the term of this Agreement shall be paid on the Effective Date. At the expiration of the contract if no cancellation notice has been provided by Client, the card on file will be charged and the Client’s plan will be renewed for an additional two year term.
- Demo Plan for Large Clients. If Client has a fleet of ten (10) or more trucks, Client can choose to use the Software and one (1) Scanner for thirty (30) days at no charge. Client will not be required to make the Deposit payment during the trial period. At the conclusion of the Demo period, if Client does not cancel the Agreement, Provider will begin charging Client’s credit card placed on file at the time of subscription as set forth above. At this time Provider will also charge the deposit fee for the Scanner. Should Client choose to cancel the Agreement after the trial period, Client shall have seven (7) days to return the Scanner and shall be responsible for all shipping charges for the Scanner. Failure to return the Scanner within seven (7) days will result in charges as set forth in Section 11 below.
- Scanner Usage and Provision
- Upon entering into a Subscription with Provider, Client will be provided with the Scanner(s) for use in Clients vehicle(s). BE ADVISED THAT DUE TO HIGH DEMAND AND BACK ORDERS FOR THE SCANNER(S) CLIENT MAY NOT RECEIVE A SCANNER FOR UP TO ONE (1) WEEK AFTER PLACING AN ORDER.
- Pursuant to the accompanying Lease Agreement Client shall not be charged for the purchase or usage of the Scanner as long as the Subscription Fee is paid monthly. However as stated in the Lease, upon execution of the Lease and Subscription Service Agreement Lessee agrees to provide Lessor with a security deposit in the amount of $49.99 (the “Security Deposit”). Provided Lessee completes the Lease and Subscription Agreement with no default and has made all payments owed, Lessor will return the Security Deposit to Lessee at the completion of the Lease. However, should Lessee default under the Lease or Subscription Service Agreement, or should Lessee owe any money to Lessor at the completion of the Lease for any reason, whatsoever, Lessee shall forfeit the Security Deposit and be charged the $199.99 fee for the purchase of the Equipment as set forth in Section 11(d) below.
- The Scanner will not come with the necessary connection wires but they are available for purchase from Provider at an additional charge (not included in Subscription Fee). Client is free to use any working connection wires obtained from source other than Provider, HOWEVER SHOULD CLIENT CHOOSE NOT TO PURCHASE CONNECTION WIRES FROM PROVIDER, THE PROVIDER (EZLOGZ) WILL NOT PROVIDE ANY WARRANTY, MAINTENANCE, OR SUPPORT FOR THE SCANNER.
- Should Client cancel the Agreement or fail to pay the Subscription Fee as required for more than ten (10) days after the due date for Payment, Client shall be obligated to return the Scanner(s) within seven (7) days of cancellation or non-payment and forfeit the Security Deposit. FAILURE TO RETURN THE SCANNER(S) AS REQUIRED WILL RESULT IN A CHARGE TO CLIENT OF $199.99 FOR THE PURCHASE OF THE SCANNER AND A $19.99 RESTOCKING FEE AND APPLICABLE SHIPPING. Client shall be entitled to reinstate service but NO REFUNDS FOR THE SCANNER CHARGE WILL BE ISSUED ONCE CHARGED.
- Client may transfer the Scanner to another account registered with Provider for a fee of $49.99. Client account(s) must be in good standing to be eligible for transfer of the Scanner.
- Intellectual Property Rights.
- Client acknowledges that all right, title, and interest in and to the Services and the Software, together with its codes, sequences, derivative
works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Provider IP”), is, and at all times shall remain, the sole and exclusive property of Provider. The Provider IP contains trade secrets and proprietary information owned by Provider and is protected by United States copyright laws (and other laws relating to intellectual property). Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses
with respect to the Services or the Software.
- Client shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means.
- The provisions of this paragraph shall survive termination of this Agreement.
- Subscription Fee.
- Client shall pay to Provider the subscription fee (the “Subscription Fee”) in the amount and for the duration that Client has entered and agreed to pursuant to the sign-up page for this Agreement.
- The Subscription Fee for the first Subscription Period (either month or year, as applicable) of the term of this Agreement shall be paid on the
Effective Date. The Subscription Fee for all subsequent Subscription Periods of the term of this Agreement shall be paid to Provider on the first day of each subsequent Subscription Period, pursuant to subsection d, below. Should Client subscribe in the middle of a Subscription Period the Fee shall be applied to the first full period following enrollment and the Client will be billed a pro-rated amount for the period of Service prior to the first full Subscription Period.
- The amount of the Subscription Fee does not include any applicable taxes. Client is responsible for any and all applicable taxes.
- Client shall provided a valid credit card, ACH payment system information, bank account information authorized for automatic bill paying, or other acceptable method of payment to Provider and shall take all necessary steps to authorize automatic payment of the Subscription Fee. Client shall be charged $1 as an initial charge to the payment method provided to Provider to verify the payment method.
By agreeing to this Agreement, Client hereby authorizes Provider to automatically charge said method of payment for all Subscription Periods during the term of this Agreement. If, for any reason, automatic payment shall be denied or payment is not made when due, then Client shall have ten (10) days after notice of non-payment from the Provider to pay the Subscription Fee to avoid late charges. After ten (10) days the Client shall pay the applicable Subscription Fee, together with a $7.99 late fee charge PER SCANNER OR DRIVER (whichever is larger) on the account to Provider. If no payments or insufficient payments are made to Provider within fifteen (15) days of notice of non-payment from Provider then the Subscription shall be cancelled immediately, Client will be charged the pro rated fees for unpaid time of usage in the month of cancellation and the Scanner will need to be returned or Client will be charged as set forth in Section 10, above. Clients’ account is only available for reinstatement for thirty (30) days from the notice of non-payment from Provider. Any reinstatement shall be subject to $34.99 reinstatement fee per account. Failure to resolve account within this time frame may result in Client’s account being turned over to a third party for collections.
- Any additional payment terms between Provider and Client shall be agreed to in writing and set forth in an invoice, billing agreement, or
other written document.
- Billing Disputes. If you dispute any charges you must let Ezlogz know within thirty (30) days after the date that Ezlogz invoices you. All amounts paid are non-refundable and we reserve the right to change our prices in the future.
- Accessibility/Performance. Provider shall use commercially reasonable efforts to make the Services available on a 24x7 basis (twenty-four hours per day, seven days per week) during the Term, except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Provider, or (ii) for any unforeseen cause beyond Provider's reasonable control, including but not limited to internet service provider or communications network failures, denial of service attacks or similar attacks, or any force majeure events set forth in this Agreement. Provider will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Software. Provider further reserves the right to monitor and reasonably restrict Client’s ability to use the Services if Client is using excessive computing resources which are impacting the performance of the Services for other subscribers. Provider agrees to notify Client in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or workaround solution.
- Maintenance and Support.
- In the event of any malfunctions or problems with the Scanner and service, Client is obligated to contact the support team within twenty-four (24) hours of the malfunction. Failure to do so will void any obligation of Provider to service or maintain the limited warranty or provide assistance to client. Upon receipt of timely notice, Provider will use best efforts to resolve the problem but provides NO GUARANTEE that every problem will be resolved.
- Provider shall maintain the Software and/or Services and provide all patches and fixes to the Software and/or Services at no additional cost. Provided, however, said maintenance shall not include any major releases of new versions of the Software, additional functionality, or custom programming, which Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties.
- Term. The Term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided herein. Client shall elect whether the term will consist of annual, two year, or monthly periods (each a “Subscription Period”). The Agreement shall automatically renew for subsequent Subscription Periods unless either party provides written notice of its election not to renew this Agreement at least fifteen (15) days prior to end of the then-current Subscription Period or otherwise terminates this Agreement pursuant to the terms of this Agreement. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Client shall immediately terminate, and the Client shall cease using the Services and shall prohibit Authorized Users from using the Services.
- Default. Client shall be in default of this Agreement if Client fails to make any payment when due and fails to cure said default within ten (10) days after receipt of written notice thereof from Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the non-breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Client breaches or attempts to breach any of the provisions of this Agreement, Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Client hereby acknowledging the inadequacy of any remedy at law.
- In addition to, and in no way limiting the requirements relating to the Provider IP as set forth in Section 4 of this Agreement, Client shall use its reasonable efforts (but in no case less than the efforts used to protects its own proprietary information of a similar nature) to protect all proprietary, confidential, and/or non-public information pertaining to or in any way connected to the Software, the Services, the Provider's financial, professional and/or other business affairs, and this Agreement (the "Confidential Information").
- Client shall not disclose or publicize the Confidential Information without the Provider’s prior written consent.
- Client shall use their reasonable efforts (but in no case less than the efforts used to protects its own proprietary information of a similar nature) not to disclose and not to use the Confidential Information for their own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the purpose of this Agreement.
- The terms of confidentiality and non-disclosure contained herein shall expire five (5) years from the date of the termination of this Agreement.
- The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later
available to the public other than through fault of the Client; (ii) already known to the Client prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (iv) required by law or court order to be disclosed.
- Limited Warranty.
- Provider warrants that it has the power and authority to grant the subscription for the Services granted to Client hereunder. EXCEPT FOR THE WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND PROVIDER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Remedy and Liability. Client represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Client's intended results; (b) use of the Services; (c) the results obtained from Services; and (d) the terms of any contracts between Client and Authorized Users. Provider does not warrant that the Client’s use of the Services will be uninterrupted or error-free. Client shall not assert any claims against Provider based upon theories of negligence, gross negligence, strict liability, fraud, or misrepresentation, and Client shall defend Provider from any demand or claim, and indemnify and hold Provider harmless from any and all losses, costs, expenses, or damages, including reasonable attorneys’ fees, directly or indirectly resulting from Client’s use of the Services, an Authorized User’s use of the Services, and/or any agreement between the Client and an Authorized User based on or in any way related to the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL,
PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, under no circumstances shall Provider be liable for any loss, costs, expenses, or damages to Client in an amount exceeding the Subscription Fee actually paid to Provider by Client for the previous twelve (12) months.
- General Prohibitions
- Client agrees that any Authorized User shall comply with all applicable “Hands-Free” Laws in all jurisdictions when using the Scanner and the mobile application and shall not improperly or illegally use the Scanner or mobile application.
- You further agree not to do any of the following:
- Post, upload, publish, submit or transmit anything that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services, or any individual element within the Services, Ezlogz's name, any Ezlogz trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Ezlogz's express written consent;
- Access, tamper with, or use non-public areas of the Services, Ezlogz's computer systems, or the technical delivery systems of Ezlogz's providers;
- Attempt to probe, scan, or test the vulnerability of any Ezlogz system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Ezlogz or any of Ezlogz's providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download any Software or Our Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Ezlogz or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Ezlogz trademark, logo, URL or product name without Ezlogz's express written consent;
- Use the Services for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation;
- Encourage or enable any other individual to do any of the foregoing.
- Although we're not obligated to monitor access to or use of the Services or to review or edit any of Services or Your Data, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any of Our Content or Your Data, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of Our Content or Your Data to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- Additional Terms for Apple Apps These Terms apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. ("Apple") App Store (each an "App Store App"), but the following additional terms also apply to App Store Apps:
- Both you and Ezlogz acknowledge that the Terms are concluded between you and Ezlogz only, and not with Apple, and that Apple is not responsible for App Store Apps or the Content;
- The App Store Apps are licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the App Store Apps in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Apps;
- In the event of any failure of the App Store Apps to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the App Store App;
- You acknowledge and agree that Ezlogz, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App Store App;
- You acknowledge and agree that, in the event of any third party claim that the App Store App or your possession and use of the App Store App infringes that third party's intellectual property rights, Ezlogz, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Ezlogz acknowledge and agree that, in your use of the App Store App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and Ezlogz acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
- Links to Third Party Websites or Resources The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
- Digital Millennium Copyright Act
- We respect the ownership rights of artists and other content owners and creators and ask that you do too. We respond to notices that we receive regarding alleged infringement if they comply with the requirements of and process specified in the Digital Millennium Copyright Act of 1998 ("DMCA"). For an overview of the DMCA's notice and takedown procedures for allegedly infringing material, please see http://www.copyright.gov/legislation/dmca.pdf. For more comprehensive provisions please see http://www.copyright.gov/title17/92chap5.html#512. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.
- Upon receipt of a notice which complies with the DMCA, we will take whatever action we deem appropriate, including removing the allegedly infringing content from the Services and limiting or terminating use of the Services for any users who are infringing the property rights of others.
- Please note that this Section is intended to inform you and copyright owners of procedures under the DMCA and to comply with Ezlogz's rights and obligations under the DMCA. This Section does not constitute legal advice, and it may be advisable to contact an attorney concerning your rights and obligations under the DMCA and any other applicable laws.
- TO THE MAXIMUM EXTENT ALLOWABLE BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND THE HARDWARE WARRANTY, IF APPLICABLE TO YOU, THE SERVICES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. EZLOGZ EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY DRIVER, FLEET USER, COMPANY OR OTHER THIRD PARTY. Except with respect to the limited warranty contained herein and in the Hardware Warranty, if applicable to you, we make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Services or anything shared by any users of the Services.
- You are solely responsible for your interactions with other users on the Services. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Services.
- Neither Ezlogz nor its affiliates or licensors is responsible for the conduct of any user of Ezlogz's Services. Your use of the Services and your use of Your Data in connection with the Services and performance of and participation in any professional services is at your sole risk and discretion and Ezlogz hereby disclaims any and all liability to you or any third party relating thereto.
- IFTA Reporting. While we strive to create accurate fuel tax reports based on Your Data and state and federal requirements, these reports are not guaranteed to be correct. You accept responsibility to ensure the accuracy and the suitability of the reports generated by the Services before submitting them to any state or federal agency. We accept no responsibility or liability for any setbacks, financial or otherwise, incurred by using our Services. It is your sole responsibility to maintain compliance standards for IFTA filing purposes.
- Third-Party Services and Wireless Providers. You or we may use a third-party provider (i.e., neither you nor us) for connectivity and/or other services associated with Ezlogz's Services, such as cellular and wireless connectivity. Ezlogz cannot and does not guarantee uninterrupted or continuous service or specific area coverage and is not responsible for downtime or loss of use of the Premium Services caused by the third-party provider's lack of provision of such services.
YOU AND YOUR END USERS UNDERSTAND AND AGREE THAT YOU AND YOUR END USERS: (1) HAVE NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIERS, (2) ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN US AND THE UNDERLYING CARRIERS, (3) THAT THE UNDERLYING CARRIERS HAVE NO LIABILITY OF ANY KIND TO YOU OR YOUR END USERS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (4) THAT MESSAGES OR DATA TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911 CALLS MAY NOT BE COMPLETED, AND (5) THE UNDERLYING CARRIERS CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES..
- Limitation of Liability
- NEITHER EZLOGZ NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EZLOGZ HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, EZLOGZ DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY PROFESSIONAL SERVICES PERFORMED BY USERS OF OUR SERVICES IN CONNECTION WITH THEIR USE OF THE SERVICES. EZLOGZ WILL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES ARISING OUT OF THE MISUSE OF YOUR USER CONTENT BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, OTHER USERS WITH WHOM YOU HAVE CONNECTED THROUGH THE SERVICES OR ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE PERFORMANCE OF PROFESSIONAL SERVICES. IN NO EVENT WILL EZLOGZ'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B), THE TOTAL AMOUNT OF FEES RECEIVED BY EZLOGZ FROM YOU FOR THE USE OF SERVICES DURING THE PAST SIX (6) MONTHS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EZLOGZ AND YOU.
- Any cause of action related to the Services or the Terms must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
- Indemnity You will indemnify, defend and hold harmless Ezlogz and its officers, directors, employees and agents, from and against, and covenant not to sue them for any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Our Content; (ii) Your Data; (iii) your performance of or participation in professional services in connection with your use of the Services or Our Content; or (iv) your violation of these Terms. Ezlogz reserves the right to control and conduct the defense of any matter subject to indemnification under these Terms. If Ezlogz decides to control or conduct any such defense, you agree to cooperate with Ezlogz's requests in assisting Ezlogz's defense of such matters.
- EZLOGZ’ Use of Customer Data. EZLOGZ collects Personal Information
and non-personal information about its Customers and Sub-Account Holders (collectively, “Customer Data”) in order to: (i) provide the Services; (ii) provide customer and technical support; and, (iii) for other business-related purposes, such as billing, marketing, and new service offerings, introductions and sales. EZLOGZ may remove from your data any personal or location-based information and combine such anonymous data with that of others in order to create “Aggregate Information.” EZLOGZ may use and sell Aggregate Data, including analyzing how Customers use the Services and determining ways in which EZLOGZ can improve the Services. If You have provided your contact information, EZLOGZ may contact You for marketing purposes by various means, including but not limited to regular mail, email or telephone. When You activate a EZLOGZ account, You expressly consent to receive marketing communications via direct mail, email (at the email address you provided when activating your account), telephone (at the number you provided when activating your account), text messages (if you provided a wireless telephone
number), instant messages or other communications methods. You may opt out of receiving one or more of these types of marketing communications at any time by contacting customer service.
Retention of Customer Data. Customer Data will be retained as long as there exists a legitimate business need to do so. For example, EZLOGZ may retain Customer Data for the duration of a dispute with our company. Location Data will be retained for each Scanner
- Notice and Demands. Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent by registered or certified mail, postage prepaid, return receipt requested or delivered personally. Unless Provider is otherwise notified in writing, the Client’s address for notice purposes shall be Client’s address provided as part of Client’s billing information.
- Governing Law; Forum Selection. This Agreement shall be governed exclusively by the laws of the State of Washington, without regard to its
conflicts of laws principles. Any action under or concerning this Agreement shall be brought exclusively in the Superior Court of Clark County, Washington. The parties irrevocably agree and consent that said forum is convenient and has jurisdiction to hear and decide any such action.
- Compliance with Laws. Client shall use the Services in accordance with any and all applicable local, state, and federal laws.
- Headings. The paragraph headings in this Agreement are for convenience only and they form no part of the Agreement and shall not
affect the interpretation thereof.
- Severability. If any provision of this Agreement shall be held illegal, void, or unenforceable, the remaining portions shall remain in full force and effect.
- No Waiver. The delay or failure of either party to exercise any right under this Agreement or to take action against the other party in the event of any breach of this Agreement shall constitute a waiver of such right, or any other right, or of such breach, or any future breaches, under this Agreement.
- Assignment. Client shall not assign or transfer this Agreement.
- No Partnership or Agency. Nothing in this Agreement is intended to nor shall operate to create a partnership between the parties, or authorize either party to act as an agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
- Force Majeure. Provider will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the Provider's
reasonable control, including but not limited to fire, flood, storm, act of God, war, malicious damage, failure of a utility service or transport or
- Attorney Fees. Should a dispute arise over this Agreement or the Lease Agreement over any matter including the collection of monies owed which requires legal proceedings, the prevailing party shall be entitled to an award of attorney fees in addition to any damages.
- Authority to Execute Documents. The undersigned represents that he/she has the authority to execute this agreement on behalf of the business identified.
- Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Services, and supersedes any and all prior or contemporaneous understandings or agreements whether written or oral. No amendment or modification of this Agreement will be binding unless reduced to a writing signed by duly
authorized representatives of the parties and such writing makes specific
reference to this Agreement and its intention as an amendment hereto.
BY CLICKING “I AGREE” AND/OR BY USING THE SOFTWARE, YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS AND
CONDITIONS. YOU FURTHER AGREE THAT THIS AGREEMENT SHALL BE
SUPERIOR TO, AND SUPERCEDE ANY CONFLICTING OR INCONSISTENT
TERMS CONTAINED IN ANY OTHER DOCUMENTS PROVIDED TO THE PROVIDER BY YOU, OTHER DOCUMENTS PROVIDED TO YOU BY THE PROVIDER, OR AGREEMENTS PREVIOUSLY ENTERED INTO BY THE PARTIES. IF YOU DO NOT AGREE TO THE TERM OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE APPLICATION AND/OR THE DATA, AND EXIT NOW BY CLICKING ON THE “I DO NOT AGREE” ICON BELOW.