Last updated May 18, 2017
These Terms of Service (TOS) apply to all websites, apps, and landing pages, microsites, and other web properties (the “Site” or “Sites”) owned and/or operated by TrueLite Trace, Inc. DBA FleetUp (“FleetUp,” “we” or “us“). Please read these Terms of Service (the “Terms“) carefully because they govern your use of our Service (as defined below). By using our Services, you agree to be bound by these Terms, with your agreement being further specified in Section 2. Please contact us with any questions at email@example.com
1. Description of Service
1.1. The “Service(s)” means FleetUp’s electronic logs, ELD software, ELD and fleet management apps, and fleet management software (including the Site, our mobile device application (“App“), and any software embedded in the Electronic Logging Device) (“Software“), the hardware (including the Electronic Logging Device, cables, display devices, and accessories) (“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 FleetUp designates them as official integrations (each a “Non-FleetUp 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 FleetUp, 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 FleetUp Services, and information or other materials that are posted, generated, provided or otherwise made available by us through FleetUp Services (“Our Content“).
2. Agreement to Terms
2.2. PLEASE BE AWARE OF THE AGREEMENT TO ARBITRATE LOCATED IN SECTION 13 OF THESE TERMS, AS IT REQUIRES ARBITRATION TO RESOLVE DISPUTES, IN MOST CASES, ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS AND CLASS ACTIONS.
3. Your Access and Use of FleetUp Services
3.1. You may access and use FleetUp Services only for lawful, authorized purposes and you shall not misuse FleetUp Services in any manner (as determined by FleetUp in its sole discretion). See Section 11 below for further provisions outlining prohibited uses of FleetUp Services. You shall comply with any codes of conduct, policies, storage limitations, or other notices FleetUp provides you or publishes in connection with FleetUp 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.
3.2. Any Software or Hardware or any of Our Content that may be made available by or on behalf of FleetUp in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to these Terms, FleetUp 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.
3.3. Subject to your compliance with these Terms, FleetUp 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. FleetUp reserves all rights in and to the App not expressly granted to you under these Terms.
3.4. 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.
3.5. Notwithstanding Section 3.4, you may allow other certain users, e.g. employees, independent contractors, and other third parties, (“End Users“) to access FleetUp Services in accordance with these Terms. To the extent that you create any Accounts for other users of FleetUp Services, direct us to create any Accounts for End Users, or allow End Users to access FleetUp Services, you are responsible for all End Users’ activity and ensuring that they are in compliance with these Terms.
3.6. 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. FleetUp’s responsibilities do not extend to the internal management or administration of FleetUp Services, and you are responsible for all Administrators’ activities and ensuring that they are in compliance with these Terms.
3.7. To the extent that you allow End Users and Administrators to access FleetUp 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.
3.8. To the extent that you allow End Users to use the Hardware, you are solely responsible for such End Users’ use of the Hardware, including any damage to or misuse of such Hardware.
3.9. 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 FleetUp Services.
3.10. You may not sell, resell or lease FleetUp Services unless you have entered into a separate agreement with FleetUp to do so.
3.11. You shall promptly notify FleetUp if you learn of a security breach related to the Service.
3.12. You assume sole responsibility for your driving logs and for complying with all state and federal regulation including, but not limited to, FMCSA Hours of Service of drivers.
4. Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data
4.3. Your acceptance of these Terms does not grant us full ownership of all of Your Data. As between FleetUp 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 FleetUp 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 FleetUp 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 FleetUp 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, we may provide Your Data to a third party. If we have an agreement with such third party to market FleetUp 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.
For clarification purposes, you grant us the necessary licenses to Your Data for us to create aggregated and de-identified data for our use in providing FleetUp Services and otherwise. Notwithstanding anything else in these Terms, we may use and sell such aggregated and de-identified data, which is compiled from our users, and does not directly identify you, for any purpose we see fit.
4.4. 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 FleetUp 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 FleetUp on or through FleetUp 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 FleetUp Services. Should you be in violation of these Terms, we have the right to remove any of Your Data causing such violation.
4.5. FleetUp 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.
4.6. 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 FleetUp, FleetUp 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 firstname.lastname@example.org
4.7. 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 FleetUp 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 email@example.com
5. Changes and Modifications to Terms of Service
5.1. 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 FleetUp 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 FleetUp Services. Because our Services are evolving over time we may change or discontinue all or any part of FleetUp Services, at any time and without notice, at our sole discretion.
6. Limitations on Services and Third-Party Relationships
6.1. FleetUp 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 FleetUp Services. FleetUp acts only as an interface to facilitate — not to direct or control — communications between users of FleetUp’s Services.
7. Who May Use FleetUp Services
7.1. You may use FleetUp Services only if you are 18 years or older and capable of forming a binding contract with FleetUp and are not barred from using FleetUp Services under applicable law.
7.2. If you want to access and use FleetUp Services, you’ll have to create an account (“Account”). You can do this via FleetUp 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.
8. Warnings and Awareness About Connections Between Drivers and Companies
8.1. FleetUp 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 FleetUp 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.
8.2. 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. FleetUp’s role in this process is solely to provide the technology and platform that enables these Services. Please see Sections 3 & 4, above, and Section 11, below, as well as the rest of these Terms, for further specific provisions outlining your responsibility for anything shared through FleetUp Services.
9. Services and Hardware
The following provisions of this Section 9 apply to you only if you have ordered Premium Services (as defined below) and/or Hardware, as applicable, and have a direct billing relationship with FleetUp for such Services and/or Hardware. If you have entered into an agreement for the provision of services and hardware with a reseller or other third party and have a direct billing relationship with such reseller or third party, please refer to the provisions of that agreement for your rights and obligations with respect to such payment and other arrangements for services and hardware. If you have entered into an agreement for the provision of services and hardware with a third party, however, you are still bound by the rest of these Terms of Service if you use any of FleetUp Services.
If you have purchased any FleetUp Hardware from us or a reseller, please refer to the Hardware Warranty (the “Hardware Warranty“) for further terms related to your specific Hardware.
9.1. Description of Services. FleetUp offers a range of Services (herein referred to as “Services“). A description of the free Services and Premium Services is available on fleetup.com. In order to request use and purchase of FleetUp Services, you must submit and agree to the terms of an order form—submitted online via electronic order form, via a FleetUp Sales Professional, an Authorized FleetUp Reseller, or others—or other form of communication for ordering FleetUp Services from FleetUp, as applicable (“Order Form“), which is subject to FleetUp’s acceptance. FleetUp reserves the right to refuse any Order Form, and receipt of an Order Form is not considered acceptance of such Order Form. To the extent you use any of our Services, you will be required to provide FleetUp accurate information regarding your credit card or other payment instrument (a “Payment Method“). You will promptly update your Account information with any changes in your Payment Method. If you do not update your Account with changes in your Payment Method, we may suspend or terminate your subscription to FleetUp Services. If any of FleetUp Services which you are currently using are free, we will notify you before any such Services become paid Services and if you wish to continue using such Services, you must pay all applicable fees for such Services.
9.2.1. Pricing and Payments. Upon acceptance of your Order Form by FleetUp, you agree to pay FleetUp in accordance with the terms set forth on your Order Form and the terms of this Agreement, and you authorize FleetUp to bill your Payment Method in advance on a periodic basis in accordance with such terms. Please be aware that the pricing for FleetUp Services will be governed by the terms in your Order Form, upon acceptance by FleetUp, and not the pricing set forth at fleetup.com or any/all associated FleetUp web properties.
9.2.2. Billing Arrangement. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on FleetUp Services (your “Billing Account”) for use of FleetUp Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for error by the Payment Processor. By choosing to use Premium Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to bill your Payment Method. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
9.2.3. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
9.2.4. Recurring Billing. Some FleetUp Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Premium Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, EMAIL SUPPORT@FLEETUP.COM
9.2.5. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
9.2.6. Billing Disputes. If you dispute any charges you must let FleetUp know within sixty (60) days after the date that FleetUp invoices you. All amounts paid are non-refundable and we reserve the right to change our prices in the future. FleetUp may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
9.2.7. Taxes. You are responsible to pay any and all taxes that we may be required to collect or pay based on providing FleetUp Services other than taxes based on our net income.
9.2.8. Discontinuation of Services. If you choose to discontinue, cancel or terminate any FleetUp Services for which you have agreed to on an Order Form before the end of the term agreed to in such Order Form, FleetUp shall have the right to immediately charge the Payment Method associated with your Account for the remaining balance due with respect to the agreed upon Term of your Services, all as further specified in your Order Form or in any agreements to extend the initial term of your Order Form.
9.2.9. AUTO-RENEWAL FOR SERVICES. Unless you opt out of auto-renewal, which can be done by emailing us at firstname.lastname@example.org, or by calling us at (855) 274-2886, any FleetUp Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If you terminate a FleetUp Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
9.2.10. Reaffirmation of Authorization. Your non-termination or continued use of any FleetUp Service reaffirms that we are authorized to charge your Payment Method for that FleetUp Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use FleetUp Services.
9.2.11. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a FleetUp Service must be used within the specified time of the trial. You must stop using a FleetUp Service before the end of the trial period in order to avoid being charged for that Service. If you cancel prior to the end of the trial period and are inadvertently charged for a FleetUp Service, please contact us at email@example.com or at (855) 274-2886.
9.3. Terms Related to Hardware Devices
9.3.1. Delivery. Please refer to your Order Form and further communications with FleetUp regarding the estimated time of delivery of the Hardware. FleetUp is not liable for any delayed or late delivery of the Hardware.
9.3.2. Installation. You are solely responsible for installing the Hardware in accordance with FleetUp’s written instructions. You acknowledge that you’re aware that in order to install the Hardware you may choose to drill holes in your vehicle, and you agree that FleetUp is not liable for any cost, expense or damages arising from the installation of the Hardware. FleetUp is not responsible for any damage arising from installation of the Hardware that does not follow FleetUp’s written instructions.
9.3.3. Terms Related to FleetUp-Owned Hardware
This Section 9.3.3 applies to you unless you have purchased the Hardware from FleetUp. If you have purchased the Hardware from FleetUp, please refer to Section 9.3.4 for your rights and responsibilities related to purchased Hardware.
(i) Ownership of the Hardware. Notwithstanding delivery of the Hardware to you and your license to use FleetUp Services, unless you have purchased the Hardware in full from FleetUp, FleetUp retains ownership of the Hardware and the software contained therein.
(ii) Return of FleetUp-Owned Hardware. At the end of the initial term specified on the Order Form or as such term is extended by further agreement between you and FleetUp (“Term“), or if the FleetUp Services have been terminated for any other reason, you must, at your own expense, uninstall, package and return the Hardware to FleetUp within 30 days of the end of the Term, in reasonable condition allowing for wear and tear. If we haven’t received the Hardware within 30 days of termination of FleetUp Services, or if the Hardware is returned in damaged condition, we will charge you $200 per unit of unreturned or damaged Hardware, so please ensure that you promptly return your Hardware. We reserve the right to charge these fees to the Payment Method that you have on file with us.
(iii) Your Responsibility for the Hardware. Except for with respect to our gross negligence or willful misconduct, you are responsible for the loss of, damage to, or the entire cost of any necessary service or repair of the Hardware. You have no right to sell, give away, transfer, pledge, mortgage, alter or tamper with the Hardware.
(iv) Material Defects. If you report to us, in writing, a material defect in the Hardware or Fleetup Services, we will run a diagnostic test of the Hardware and FleetUp Services. If we determine that there is a material defect in the Hardware or the FleetUp Services, we will send you replacement Hardware or work to resolve any other issues with FleetUp Services. Within 30 days of receipt of the replacement Hardware you must, at your own expense, uninstall, package and return the defective Hardware to FleetUp. If we haven’t received the defective Hardware within 30 days of your receipt of the replacement Hardware, or if the equipment is returned in damaged condition, we will charge you $200 per unit of unreturned or damaged Hardware, so please promptly attend to your Hardware return. We reserve the right to charge these fees to the Payment Method that you have on file with us. If we are unable to reasonably correct the defect within 15 days of your report, we will refund you a proportionate amount of the fees paid for the Premium Services for those parts of FleetUp Services that were inoperative from the time of the report to when the defect was resolved (“Material Defects Refund“). You agree that the your only remedy for such a defect is your right to a Material Defects Refund as provided in this paragraph.
(v) Limitations on the Material Defects Refund. The Material Defects Refund policy in Section 9.3.3 (iv) is null and void in the event of (a) any alteration, modification or special configuration or installation or deinstallation of the Hardware or the embedded software without following FleetUp’s written instructions; (b) accidents affecting the Hardware, misuse, tampering with, abuse, neglect or damage the Hardware; (c) use FleetUp Services not in the ordinary course of your business operations; (d) connecting the Hardware to an improper voltage supply; (e) water, weather or physical damage; or (f) use of the Hardware with accessories and/or devices which are not approved by FleetUp.
9.3.4. Terms Related to Purchased Hardware. If you have purchased Hardware directly from FleetUp, please refer to the Hardware Warranty that accompanied your Hardware for additional terms related to the Hardware, Hardware defects, and Hardware sales and returns.
9.3.5. Replacement Cables. Each set of Hardware is delivered with one set of cables (each an “Original Cable Set“) for use with the Hardware. In the event that, within 30 days of receipt of an Original Cable Set, you discover that we have sent you either a defective Original Cable Set or an Original Cable Set that is incompatible with your vehicle(s) due to our error in interpreting the cable set which you specified when you requested Fleetup Services (e.g., we sent you a 6-pin cable set when you requested a 9-pin cable set), you may, within 30 days after receipt of the Original Cable Set, request a replacement set of cables without charge (each replacement set a “Replacement Cable Set“). If after 30 days of receipt of the Original Cable Set, you request a Replacement Cable Set, we will charge you $30 for each such Replacement Cable Set that we deliver to you. If the Original Cable Set is the incorrect cable set for your vehicle(s) due to no fault of FleetUp, you may order cable sets from us, and we will charge you $30 for each extra cable set delivered to you. We reserve the right to charge these fees to the credit or debit card or other payment instrument that you have on file with us.
9.3.6. Customer Service. In the event the Hardware does not operate, please contact us by emailing us at firstname.lastname@example.org or by calling us at (855) 274-2886 ext. 3.
9.4. Limited Warranty; Disclaimers
9.4.1. We warrant that during the applicable subscription term for FleetUp Services, FleetUp Services and Hardware will be free of defects in materials and workmanship under normal use and service and shall substantially conform with instruction manuals, user guides, and other information provided by FleetUp, or posted to its website, provided that such warranty is limited by these Terms; provided, however, that the remedies provided for in this Section 9 and the Hardware Warranty, if applicable to you, are the only remedies available for defective Hardware and/or Services.
9.4.2. The Hardware connects to the battery of your vehicle and consumes a small drain on your vehicle’s battery, which may adversely affect your vehicle while not in operation. FleetUp is not liable for any consequences of the battery drain associated with use of the Hardware or FleetUp Services.
9.4.3. The warranties provided herein and any remedies for such warranties are null and void in the event of (a) any alteration, modification or special configuration or installation or deinstallation of the Hardware, the embedded software or the Software without following FleetUp’s written instructions; (b) accidents affecting the Hardware, misuse, tampering with, abuse, neglect or damage to the Hardware; (c) use of FleetUp Services not in the ordinary course of your business operations; (d) connecting the Hardware to an improper voltage supply; (e) water, weather or physical damage; or (f) use of the Hardware with accessories and/or devices which are not approved by FleetUp.
11. General Prohibitions
11.1. IT IS STRICTLY FORBIDDEN TO USE FLEETUP APP WHILE DRIVING. VOICE OVER HOS ALLOWS DRIVERS TO INTERACT WITH FLEETUP SERVICES WITHOUT USING THEIR DEVICE WHILE DRIVING. IF YOU DON’T HAVE ACCESS TO VOICE OVER HOS, SEND AN EMAIL TO SUPPORT@FLEETUP.COM
11.2. You further agree not to do any of the following:
11.2.1. 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;
11.2.2. Use, display, mirror or frame FleetUp Services, or any individual element within FleetUp Services, FleetUp’s name, any FleetUp trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without FleetUp’s express written consent;
11.2.3. Access, tamper with, or use non-public areas of FleetUp Services, FleetUp’s computer systems, or the technical delivery systems of FleetUp’s providers;
11.2.4. Attempt to probe, scan, or test the vulnerability of any FleetUp system or network or breach any security or authentication measures;
11.2.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by FleetUp or any of FleetUp’s providers or any other third party (including another user) to protect FleetUp Services;
11.2.6. Attempt to access or search FleetUp Services or download any Software or Our Content from FleetUp 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 FleetUp or other generally available third party web browsers;
11.2.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
11.2.8. Use any meta tags or other hidden text or metadata utilizing a FleetUp trademark, logo, URL or product name without FleetUp’s express written consent;
11.2.9. Use FleetUp Services for the benefit of any third party or in any manner not permitted by these Terms;
11.2.10. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use FleetUp Services to send altered, deceptive or false source-identifying information;
11.2.11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide FleetUp Services;
11.2.12. 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 FleetUp Services;
11.2.13. Collect or store any personally identifiable information from FleetUp Services from other users of FleetUp Services without their express permission;
11.2.14. Impersonate or misrepresent your affiliation with any person or entity;
11.2.15. Violate any applicable law or regulation; or
11.2.16. Encourage or enable any other individual to do any of the foregoing.
11.3. Although we’re not obligated to monitor access to or use of FleetUp Services or to review or edit any of FleetUp’s Services or Your Data, we have the right to do so for the purpose of operating FleetUp 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 FleetUp Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
12. Additional Terms for Apple Apps
These Terms apply to your use of all FleetUp 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:
(i) Both you and FleetUp acknowledge that the Terms are concluded between you and FleetUp only, and not with Apple, and that Apple is not responsible for App Store Apps or the Content;
(ii) 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 FleetUp Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to Fleetup Services;
(iii) You will only use the App Store Apps in connection with an Apple device that you own or control;
(iv) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Apps;
(v) 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;
(vi) You acknowledge and agree that FleetUp, and not Apple, is responsible for addressing any claims you or any third-party may have in relation to the App Store App;
(vii) 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, FleetUp, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(viii) 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;
(ix) Both you and FleetUp 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
(x) Both you and FleetUp 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.
13. Arbitration Agreement, Dispute Resolution and Releases
PLEASE READ THIS SECTION CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS AND YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION.
Unless otherwise agreed to by both parties in writing, you and FleetUp agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or relating in any way to your use of FleetUp Services, or any use of FleetUp Services by a user to whom you provide access to your Account, or arising out of or relating to these Terms and the Hardware Warranty (“Claim“) will be resolved as follows:
13.1. Informal Dispute Resolution. Except with respect to Claims listed in Section 13.6, below, you and FleetUp agree to attempt to resolve any disputes informally before initiating any arbitration or other formal proceedings, and neither of us may start an arbitration or other formal proceeding for at least 30 days after you contact us or we contact you regarding any dispute (“Informal Negotiation Period“).
13.2. Agreement to Arbitrate. If such dispute is not resolved within 30 days, you or FleetUp may initiate a formal arbitration proceeding in accordance with the terms in this Section 13. Except with respect to Claims listed in Section 13.6, below, you and FleetUp agree to resolve any Claims relating to or arising from FleetUp Services, these Terms or the Hardware Warranty through final and binding arbitration in accordance with the terms in this Section 13.
13.3. Arbitration Notice. If either you or FleetUp chooses to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim (“Arbitration Notice“) to the other party. You will send your Arbitration Notice by email to email@example.com and by U.S. mail to:
500 Yosemite Drive, Suite 120
Milpitas, CA 95035
13.4. Arbitration Procedures. Any arbitration proceedings between you and us will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”), except with respect to the provision of this agreement which bars class actions in Section 13.8 and any specific rules and procedures explicitly discussed in this Section 13.4. The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert and other witness and reasonable attorneys’ fees. For claims less than $10,000, we will advance to you AAA’s filing fees; provided, however, that such fees must be repaid to FleetUp if FleetUp prevails in the arbitration.
13.5. Non-Appearance-Based Arbitration Option. Except with respect to the exceptions to arbitration below in Section 13.6, for Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non-appearance-based arbitration. If non-appearance-based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating arbitration. Non-appearance-based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by the parties.
13.6. Exceptions to the Agreement to Arbitrate.
13.6.1. Notwithstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either law suits solely for injunctive relief to stop unauthorized use of FleetUp Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy or unauthorized use of FleetUp Services.
13.6.2. Either you or FleetUp may assert claims which qualify for small claims court in San Francisco, CA or in any United States county in which you either live or work.
13.7. Opting Out of the Agreement to Arbitrate. You have the right to opt-out and not be bound by the binding agreement to arbitrate provided in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org AND by U.S. Mail to FleetUp, 500 Yosemite Drive, Milpitas, CA 95035. In order for your opting out to be valid, your notice must be sent within 30 days of first using FleetUp Services.
13.8. No Class Actions. Unless you and FleetUp agree otherwise, you may only resolve disputes with us on an individual basis. Class actions, class arbitrations, private attorney general actions and consolidations with other Claims are not allowed. Neither you nor FleetUp may not consolidate a Claim or Claims as a plaintiff or a class member in a class action, a consolidated action or a representative action.
13.9. Consent to Jurisdiction. If the agreement to arbitrate provided for in these Terms is found not to apply to you or your Claim, or if you or FleetUp challenges any arbitration award or seeks to have an arbitration award enforced, you and FleetUp agree that any judicial proceeding will be brought in the federal or state courts located in Santa Clara County, California. You and FleetUp consent and agree to both venue and personal jurisdiction in the federal and state courts located in San Francisco, CA.
13.10. Release from Third-Party Claims. Because FleetUp is not party to any agreements between you and any third parties or involved in the completion of any associated professional services, in the event that you have a dispute with one or more other Drivers, Fleet Users or Companies or other third parties, as applicable (each, an “Other Party“), you agree to address such dispute directly with the Other Party in question and you release FleetUp (and our officers, directors, agents, investors, subsidiaries, and employees from any and all claims, demands, or damages (actual or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
14. Links to Third Party Websites or Resources
14.1. FleetUp 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.
15. Digital Millennium Copyright Act
15.1. 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“).
15.2. 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 FleetUp Services and limiting or terminating use of FleetUp Services for any users who are infringing the property rights of others.
15.3. Please note that this Section is intended to inform you and copyright owners of procedures under the DMCA and to comply with FleetUp’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.
16.1. These Terms will continue in full force and effect unless and until your Account or these Terms are terminated as described herein.
16.2. We may terminate your access to and use of FleetUp Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of the Terms that should, by their nature, survive termination of this Terms will survive termination. Such provisions include, but are not limited to: Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data; Disclaimers; Indemnity; Limitation of Liability; Arbitration Agreement, Dispute Resolution and Release; General Terms; and provisions related to ownership.
16.3. In the event that you have paid for Premium Services, and we terminate your Account in our own discretion with no fault of your own, we will refund you a proportionate amount of the fees paid for the Premium Services for the time from which we terminated your Account to the end of the then-current payment period.
16.4. All accrued rights to payment shall survive termination of the Terms.
16.5. Notwithstanding Section 16.2, please be aware that once your Account has been terminated, we no longer have any obligation to maintain or provide Your Data, and we may delete or destroy all copies of Your Data in our possession or control, unless legally prohibited.
17.1. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND THE HARDWARE WARRANTY, IF APPLICABLE TO YOU, FLEETUP 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. FLEETUP 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 FleetUp 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 FleetUp Services or anything shared by any users of FleetUp Services.
17.2. You are solely responsible for your interactions with other users on FleetUp Services. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using FleetUp Services.
17.3. Neither FleetUp nor its affiliates or licensors is responsible for the conduct of any user of FleetUp’s Services. Your use of FleetUp Services and your use of Your Data in connection with FleetUp Services and performance of and participation in any professional services is at your sole risk and discretion and FleetUp hereby disclaims any and all liability to you or any third party relating thereto.
18. Limitation of Liability
18.1. NEITHER FLEETUP NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING FLEETUP 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 FLEETUP SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLEETUP 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.
18.2. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, FLEETUP 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 FLEETUP SERVICES. FLEETUP 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 FLEETUP SERVICES OR ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE PERFORMANCE OF PROFESSIONAL SERVICES. IN NO EVENT WILL FLEETUP’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE FLEETUP SERVICES OR CONTENT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B), IF YOU HAVE ORDERED PREMIUM SERVICES FROM FLEETUP, THE TOTAL AMOUNT OF FEES RECEIVED BY FLEETUP FROM YOU FOR THE USE OF PREMIUM SERVICES DURING THE PAST SIX (6) MONTHS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FLEETUP AND YOU.
18.3. Any cause of action related to FleetUp Services or the Terms must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
19.1. You will indemnify, defend and hold harmless FleetUp 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 FleetUp Services or Our Content; (ii) Your Data; (iii) your performance of or participation in professional services in connection with your use of FleetUp Services or Our Content; or (iv) your violation of these Terms. FleetUp reserves the right to control and conduct the defense of any matter subject to indemnification under these Terms. If FleetUp decides to control or conduct any such defense, you agree to cooperate with FleetUp’s requests in assisting FleetUp’s defense of such matters.
20. General Terms
20.2. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without FleetUp’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. FleetUp may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
20.3. Governing Law. The Terms and the relationship between you and FleetUp shall be governed by the laws of the State of California.
20.4. Notices. Any notices or other communications provided by FleetUp under these Terms, including those regarding modifications to these Terms, will be given by FleetUp: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
20.5. Waiver and Severability. FleetUp’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of FleetUp. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If any of these Terms are unenforceable, it will not affect the enforceability of the rest of the Terms.
21. Contact Information
If you have any questions about these Terms or FleetUp Services please contact us at firstname.lastname@example.org or at 500 Yosemite Drive, Suite 120, Milpitas, CA 95035.