Terms and Conditions
DRIVESYNC® WEB PORTAL TERMS AND CONDITIONS
WELCOME TO THE DRIVESYNC WEB PORTAL!
THIS DRIVESYNC WEB PORTAL AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN INTELLIGENT MECHATRONIC SYSTEMS INC. ("IMS") AND THE AUTHORIZED USER REGISTERING TO ACCESS AND USE THIS DRIVESYNC WEB PORTAL ("YOU"). YOU ARE EITHER AN INDIVIDUAL WHO HAS PURCHASED A DRIVESYNC PRODUCT FOR YOUR OWN PERSONAL USE OR YOU REPRESENT AN ENTITY THAT HAS PURCHASED A DRIVESYNC PRODUCT FOR USE BY YOU AND THAT ENTITY HAS AUTHORIZED YOU TO REGISTER AND USE THIS PORTAL.
BY SELECTING "I AGREE" YOU ARE DEEMED TO HAVE READ AND ARE INDICATING YOUR ACCEPTANCE OF, AND YOU AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH SHALL GOVERN YOUR ACCESS AND USE OF THE DRIVESYNC WEB PORTAL.
IF YOU DO NOT AGREE TO THIS AGREEMENT THE ACCESS AND USE OF THE DRIVESYNC WEB PORTAL WILL NOT BE PERMITTED AND YOU MAY, WITHIN THIRTY DAYS OF THE DATE OF YOUR PURCHASE OF THE DRIVESYNC PRODUCT, RETURN THE DRIVESYNC PRODUCT AND ALL RELATED MATERIALS IN ITS ORIGINAL PACKAGING AND SALE CONDITION TO: (a) IMS IF YOU HAVE PURCHASED THE DRIVESYNC PRODUCT DIRECTLY FROM IMS OR; (b) TO AN IMS AUTHORIZED RESELLER OR DISTRIBUTOR IF YOU HAVE PURCHASED THE DRIVESYNC PRODUCT FROM SUCH ENTITIES, AND IMS OR ITS AUTHORIZED RESELLER OR DISTRIBUTOR, AS APPLICABLE, SHALL PROVIDE A FULL REFUND OF THE PURCHASE PRICE PAID WITHIN THIRTY DAYS OF ITS RECEIPT OF THE RETURN.
In consideration of the fees paid by you (or the entity that you represent) as part of the purchase price of the DriveSync product and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you agree with IMS as follows:
1. Purpose of Portal
The Portal is made available by IMS only to Authorized Users of DriveSync products for the purpose of providing certain services and functionality related to your use and operation of the DriveSync product.
"Anonymous Transaction Data" means any and all aggregated, anonymous data and information that is not Confidential Data of Individuals or in the case of a business or other entity that does not specifically identify such entity (including because it has been de-identified, aggregated or made anonymous by IMS) communicated through or stored by the Portal that relates to the Portal Services, and for certainty, includes all data (including statistical, usage, demographic and profile data and similar information and data) collected, reviewed, generated and associated with the provision of Portal Services and the use of DriveSync products and this Portal.
"Driver Data or Driving Data" means the speed, aggressive driving metrics, time of day, location and other Raw Data, if any, specified by Customer and IMS in an SOW that is collected on a Data Collection Device, provided to Customer and input into the IMS Technology Systems for processing. Data elements made available will vary with the Data Collection Device model and configuration in use by each policy holder.
"Other User Registration Data" means Registration Data of persons other than the individual that provides such information to IMS for the purposes of managing multiple vehicles / DriveSync products on the Portal.
"Confidential Data of Individuals" means any information such as Driver Data or Authorized User identification information that may include, confidential information of Customer's former, present and prospective employees, insureds (including Policyholders), agents, and financial and insurance services customers and/or claimants, including without limitation information identifying or personally identifiable to such individuals.
"Portal" means either the standard DriveSync® portal as such is generally made available to Customer or End Users pursuant to a clickable Web Portal Agreement or another portal designated in an SOW for use in connection with the Services purchased under that SOW. By mutual written agreement of the parties, IMS may establish a branded portal for Customer for a mutually agreed fee on terms specified in the corresponding SOW. Each SOW shall indicate the designated Portal URL for that SOW and shall attach or incorporate by reference the applicable Portal agreement, if any.
"Portal Documentation" means the DriveSync Web Portal Guide, as updated and amended from time, the current version of which is available on the Portal via the "Downloads" link.
"Portal Services" means services that allow you to submit Raw Data through the Portal and allow IMS to prepare and deliver reports to you, as more fully described in Section 4.
"Raw Data" means any and all telematics data and information collected on or by a DriveSync product, including but not limited to, time, velocity and product tampering data and information.
"Registration Data" has the meaning given to it in Section 3 of this Agreement.
"Software" means IMS' computer software program, known commercially as the DriveSync Client, which for certain DriveSync product configurations, enables the upload of Raw Data to the Portal.
"Third Party Data" has the meaning given to it in Section 5.
3. Registration Data, Accounts And Passwords
As part of the process to create, register and maintain your DriveSync account you must provide IMS with certain current, complete, and accurate registration information, including contact information (including Confidential Data of Individuals), vehicle information and other data or information that has been requested by IMS during the client account registration or renewal process ("Registration Data"). Registration Data may in certain circumstances include: (i) Other User Registration Data that you provide to IMS; and (ii) credit card or other payment related information. You agree to maintain and update such Registration Data as necessary in order to keep such information current, complete, and accurate. Registration Data will be used by IMS solely in accordance with the terms of Section 6 of this Agreement.
You agree to be responsible for: (a) maintaining the confidentiality of any passwords or other account identifiers which you choose or that are assigned to you as a result of any registration with the Portal, and (b) all activities that occur under such password or account. Further, you agree to immediately notify IMS of any unauthorized use of your password or account or in the event that the confidentiality of your password is compromised. IMS shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this Section.
4. Description of DriveSync Portal Services
The End User Portal is configurable according to data collection device feature models/options and their configurations. The End User Portal is an optional component of the IMS Proprietary Technology System. It is also subject to optional customer customization and may provide some or all of the following information to users as available:
1. Trip Summary Report:
a. Total Travel Miles
b. Miles Per Day
c. Number of Trips
d. Miles per Trip
e. Total Drive Time
f. Drive Time per Day
2. Driving Style Report:
a. Harsh Acceleration count
b. Harsh Braking count
c. Average Speed
d. Maximum Speed
e. Engine Idle Time
3. Environmental Impact Report:
a. Fuel Consumption
b. Carbon Dioxide Production
c. Carbon Dioxide emissions per mile
d. Fuel Consumption per Trip
4. Trip Details (With route maps if GPS is available in the device):
a. Trip Start Date
d. Average Speed
e. Maximum Speed
5. Event Reports (with map locations if GPS is available in the device):
a. Event Date and Time
b. Event Type: (Speed Threshold violation, Hard Acceleration/Deceleration, Device Connect/Disconnect,)
c. Event Details
6. Green Performance Charts:
a. Environmental Impact (Year to Date Carbon emissions)
b. Expected Carbon Footprint for Calendar Year
c. Comparative reporting to User's History and to All Subscribers as available
7. Green Charts:
a. Carbon Dioxide Emissions per day
8. Trip Charts:
a. Percentage of drive time per Time-of-Day
b. Percentage of drive time per Day of Week
9. Notifications (via email, or SMS) – available to end-users on a pay-per-use basis with IMS unless otherwise noted.
a. Speed Threshold violations
b. Time-of-Day Violation
d. GeoFence Crossing
e. Fast Acceleration
f. Hard Braking
Other Services: Any other services made available on the DriveSync Portal from time to time.
5. Use of the Portal
IMS hereby grants you a limited, non-exclusive, personal, non-transferable and non-sub-licensable and revocable right and license to: (a) transfer Raw Data from your DriveSync product to the Portal through the use of the Software or via a wireless connection where available; (b) access the Portal via the Internet for the purpose of receiving Portal Services; (c) download DriveSync Reports from the Portal for your use in connection with the management of vehicles on which the related DriveSync product is installed; and (d) access, view and print any information and documentation, including the Portal Documentation, made available on the Portal for your personal, non-commercial, and informational use only to assist you in the access and use of the Portal.
Use of the Portal is restricted: (a) if you are an individual, to your personal and private use in connection with your use of your DriveSync product; and (b) if you represent an entity on who's behalf you are acting, to the internal and private business use of such entity in connection with the use and management of DriveSync product(s) purchased and managed by such entity.
For certainty, this Agreement does not apply to or govern your use of the Software or the DriveSync product, which is governed by the terms and conditions of the Master Services Agreement.
IMS reserves the right to change, modify, suspend or discontinue the Portal and any or all of the Portal Services at any time for any reason, or for no reason at all, in IMS' sole discretion, with or without notice to you and IMS may suspend or terminate your access to the Portal immediately without prior notice in IMS' sole discretion, with or without notice to you and without further obligation or liability to you. IMS shall not have any liability of any kind or any nature whatsoever to you solely by reason of any change, modification, suspension or discontinuance of the Portal or any or all of the Portal Services in accordance with its terms. You agree that you shall not make any claim against IMS, including with respect to any lost revenue, profits or opportunities as a result of such change, modification, suspension or discontinuance or on account of any expenditures made or actions taken in reliance on the expected continuation of the Portal, the Portal Services or this Agreement.
The Portal Services may include providing you with access to certain third party data licensed by IMS from third parties ("Third Party Data"). You agree that all of the terms and conditions of this Agreement relating to the Portal Services apply to your access to and use of any Third Party Data and you further agree to comply with any terms and conditions that are specific to the Third Party Data.
The Portal Services are subject to any limitations specified in the Portal Documentation or on the Portal from time to time. You agree to comply with all applicable laws in using the Portal Services.
6. Data and Confidential Data of Individuals
(a) Registration Data: Registration Data submitted will be used by IMS for the purposes of registering and administering your Portal account and use of Portal Services and to communicate with you. You hereby authorize and provide IMS with the right and authority and consent to use and to disclose to other persons (including any IMS third party service providers and payment processors) Registration Data for the purpose of performing the Portal Services and otherwise as IMS determines is reasonably required in performing its obligations under this Agreement.
(b) Raw Data collected by telematics device: You hereby authorize and provide IMS with the right and authority and consent to use and to disclose or sublicense to other persons (including any IMS third party service providers) the Raw Data for the purpose of performing the Portal Services and otherwise as IMS determines is reasonably required in performing its obligations under this Agreement. Raw Data transmitted to DriveSync hosting servers or otherwise provided to IMS will be used by IMS for the purposes of performing Portal Services generating DriveSync Reports and in creating aggregated data analysis.
(c) Portal: Portal will be provided to you as part of the Portal Services and IMS will not, subject to the terms of this Agreement, intentionally use, disclose or provide the Portal to any other person. You hereby authorize and provide IMS with the right and authority and consent to use, transmit over the Internet to you and to disclose to other persons (including any IMS third party service providers) the Portal for the purpose of performing the Portal Services and otherwise as IMS determines is reasonably required in performing its obligations under this Agreement.
(d) Anonymous Transaction Data: IMS retains the right, and to the extent required you hereby authorize and provide IMS with the right and authority, to use any Anonymous Transaction Data for its internal business purposes without limitation or restriction for any purpose IMS may, in its discretion, choose and use and disclose and commercially exploit the Anonymous Transaction Data without limitation or restriction for any purpose IMS may, in its discretion, choose.
You agree to provide or you represent and warrant to IMS that you have the full, unrestricted right and authority and have been fully authorized to provide to IMS any and all Registration Data (including any Confidential Data of Individuals and Other User Registration Data) and any and all Raw Data collected from the telematics device for the purposes of this Agreement and that IMS is authorized and permitted to use such data as and to the extent provided in this Agreement.
You acknowledge that IMS does not, and you agree that IMS has no obligation to, monitor or review any Raw Data or any Portal Reports prepared by IMS hereunder or to advise you of any results contained therein or to take any action as a result thereof. Portal Reports are prepared solely for your own personal use or business purposes and uses and you are solely responsible to review Portal Reports. Notwithstanding, you agree that IMS has the right to monitor and review Raw Data and Reports, and your use of the Portal Services from time to time and, with respect to any and all Raw Data that you disclose using, or Portal Reports generated through, the Portal Services, you agree that IMS may in its discretion preserve and may disclose without liability to you any of such data and reports where required to do so by law (including if ordered to do so by a court having jurisdiction over IMS) or where such disclosure is reasonably believed by IMS to be necessary to ensure compliance with applicable law or to enforce this Agreement or protect the rights and interests of IMS or any other person.
IMS will use reasonable efforts to protect any Raw Data and Registration Data that you upload to the Portal or otherwise provide to IMS and any DriveSync Portal Reports. Once such data has been received or generated by IMS, IMS employs physical, administrative and technical safeguards, reasonably appropriate to the sensitivity of the information, to safeguard your such data (including any Confidential Data of Individuals therein) against loss, theft, misuse, unauthorized access or disclosure. For example, with respect to the Portal, IMS uses SSL (Secure Socket Layer) technology, an encryption technology used to encrypt information sent from your computer to our servers over the Internet. Unfortunately, no data transmission over the Internet or system can be guaranteed to be 100% secure. Although IMS uses reasonable efforts to safeguard your data and information, IMS cannot guarantee it. IMS cannot ensure or guarantee that any data or information you provide or transmit to IMS or that IMS transmits to you is completely secure from individuals who might attempt to deliberately evade security measures, including by intercepting wireless transmissions or transmissions over the Internet. You provide IMS with your data and information and authorize IMS to report to you at your own risk.
7. Fees and Charges
Unless otherwise stated in writing at the time of your purchase of your DriveSync product, the Portal Services, excluding pay-per-use services, are (except as otherwise noted on the Portal or otherwise) included as part of the Telematics Service as long as devices are active on the IMS telematics network.
Thereafter, unless and to the extent IMS, in its sole discretion, agrees to continue to make all or some of the Portal Service available, your continued use of the Portal Services shall be subject to IMS' then current subscription charges or pay-per-use charges for the Portal Services.
If you elect to purchase chargeable Portal Services, such chargeable Portal Services will be payable in advance by credit card prior to being made available to you. You hereby agree to pay all charges to your account, plus all applicable taxes, in accordance with IMS' billing terms then in effect at the time the fee or charge becomes payable, provided that IMS agrees it shall notify you of such charges and terms in advance and will provide you with the opportunity to accept or decline to continue with the Portal Services. Pay-per-use Portal Services shall be payable in advance prior to receipt of the applicable service. Monthly or annual subscription services shall be payable monthly in advance and may require a minimum initial subscription period. The effective start date of subscription services shall be date on which you register for the subscription and your first subscription fee shall be payable on such date. Subsequent subscription fees will be charged to your credit card on the same date in the immediately following the expiration of the applicable subscription period which corresponds to your registration date (or the next day if the date of registration does not exist in such following month). After the completion of any initial minimum subscription period, your monthly subscription services will automatically renew for the same period of time at the then current fee or charge (charged to your credit card as indicated above) unless you provide notice to IMS at least 1 day prior to the expiration of the then current subscription period by clicking on the "cancel subscription" link on the Portal indicating that you wish to cancel your subscription. If notice of termination is received as set out in the preceding sentence, your subscription services will terminate at the end of the then current paid up applicable period. IMS reserves the right to terminate or suspend your subscription services at any time in the event of any non-payment by you. IMS reserves the right to change the amount of or basis for determining any fees or charges for services IMS provides, and to institute new fees, charges, or terms at any time (except in the case of subscription services no retroactive fees will be charged by IMS).
Save and except for the limited rights and licenses explicitly granted or contemplated by the Agreement, all right, title and interest (including all intellectual property and other proprietary rights and interests) in and to the Portal and all technology, software, content, information, data, documentation and materials forming part of or contained on or available through or from the Portal is the sole and exclusive property of IMS or its licensors. Nothing in the Agreement shall, or shall be deemed or construed to, assign, transfer or convey to you any title, rights or interest in or to any technology, data, information, documentation or intellectual property other than the licenses specifically and expressly granted herein.
U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND. The Portal and all technology, software, content, information, data, documentation and materials is commercial in nature and developed solely at private expense. Use, duplication, or disclosure by or on behalf of the U.S. Government or organizations funded in part or wholly by the U.S. Government is subject to limited or restricted rights as set forth in subparagraph (c) (1) and (2) of the Commercial Computer Software - Restricted Rights clause in FAR 52.227-19 (Jun 1987) (commercial computer software clause for civilian agencies), in DFARS 252.227-7015 (Nov 1995) or in FAR 52.227-14 Alternates I, II, and III (JUN 1987) (civilian agency technical data and noncommercial computer software clause) as applicable. In case of conflict between any of the FAR and DFARS provisions listed herein and this license, the combination of clauses that results in the greatest limitations on the Governments rights shall be used. Manufacturer is Intelligent Mechatronic Systems, Inc. 435 King St. North, Waterloo ON Canada N2J 2Z5. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that the Portal and all technology, software, content, information, data, documentation and materials are a trade secret and a proprietary commercial product and not subject to disclosure.
You shall not provide the data to the U.S. Government or its contractors absent IMSÃÂÃÂ¢ÃÂÃÂÃÂÃÂ consent, and shall not provide the data without: (a) identifying and licensing the data in all proposals and agreements with the United States Government or any contractor therefore; and (b) legend or mark the data provided pursuant to any agreement with the U.S. Government or any contractor therefore in a form sufficient to obtain for IMS and its suppliers the protection intended by the U.S. Government Restricted Rights Legend.
9. Portal Use Restrictions
You agree that when using the Portal you will not: (a) knowingly post or transmit any files (including Raw Data) which contain viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties; (b) post or transmit data or content which violates or infringes any third party rights or is injurious to a third party or defames, libels or disparages any third party; (c) except as expressly permitted by the Agreement, provide, disclose, sublicense, distribute, transfer, assign or otherwise permit any third party to access, use, read or otherwise gain access to the Portal; (d) use or attempt to use the Portal or Portal Services in conjunction with any product or device other than the DriveSync product; (e) use the Portal to act as a "service bureau" to provide the benefit of the use of the Portal Services to or for any other person (provided that the foregoing restriction shall not be construed to prohibit the use of the Portal as permitted hereunder in the management of multiple vehicles); (f) to the maximum extent permitted to be restricted by applicable law, reverse engineer, decompile, disassemble, or otherwise in any manner deconstruct all or any part of the Portal or any software or technology forming part thereof; or (g) post or transmit data or content which would be considered a criminal offence, give rise to civil liability, or would otherwise violate the law. You may not use any spider. robot or other automated or electronic agent to monitor or copy web pages or any content from the Portal or for any other purpose in connection with your access to and use of the Portal. You shall not take any action or use any program or device that may result in or is intended to interfere with the operation and functioning of the Portal or to shut down, overload or overwhelm the Portal.
IMS may in its discretion, without any obligation to do so and subject to the limitations of this Agreement (or as may be included in the Portal Documentation or posted on the Portal from time to time), provide you with the troubleshooting support concerning your use of the Portal and Portal Services to the extent provided for in the Portal Help Documentation or posted on the Portal.
11. Portal and Portal Services Provided "AS IS"
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE PORTAL, THE PORTAL SERVICES, ANY DRIVESYNC PORTAL REPORTS, ANY THIRD PARTY DATA AND OTHER INFORMATION, DATA AND MATERIALS AVAILABLE ON THE PORTAL OR AS PROVIDED AS PART OF THE PORTAL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE WHATSOEVER. IMS DOES NOT OFFER ADVICE OR RECOMMENDATIONS CONCERNING INFORMATION OR DATA CONTAINED IN ANY DRIVESYNC REPORTS AND ANY ACTIONS TAKEN, OR FAILURES TO ACT, IN RELIANCE ON THE DRIVESYNC REPORTS (OR OTHERWISE ON THE PORTAL SERVICES) BY YOU OR ANY OTHER PERSON IS YOUR SOLE RESPONSIBILITY AND LIABILITY.
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IMS EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDTIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE, AND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS, ANY CONDITION OR WARRANTY OF MERCHANTABILITY, TITLE OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND ANY CONDITION OR WARRANTY OF FITNESS FOR PARTICULAR PURPOSE.
IMS SPECIFICALLY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PORTAL OR ANY OF THE PORTAL SERVICES (INCLUDING THE PROVISION OF ANY DATA (INCLUDING THIRD PARTY DATA), REPORTS, CONTENT, INFORMATION, PRODUCTS OR SERVICES) WILL BE ACCURRATE, RELIABLE OR COMPLETE OR WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT ANY ERRORS CAN OR WILL BE CORRECTED OR THAT ANY PORTAL SERVICES, DATA OR REPORTS OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THAT THE PORTAL AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL ELEMENTS. IMS IS NOT RESPONSIBLE FOR ERRORS OR DELAYS IN TRANSMISSION OVER THE INTERNET OR ERRORS OR DELAYS OR RESULTS CAUSED BY OR ATTRIBUTABLE TO THE USE OF OR RELIANCE ON ANY GPS TECHNOLOGY OR DATA USED BY DRIVESYNC PRODUCTS AND IN THE DELIVERY OF PORTAL SERVICES. SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS ON OR EXCLUSIONS OF CERTAIN IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; THEREFORE THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN CERTAIN CIRCUMSTANCES.
IF YOU ARE DISSATISFIED WITH THE PORTAL, THE PORTAL SERVICES OR WITH ANY OF THE TERMS, CONDITIONS, GUIDELINES, PRACTICES OR POLICIES OF IMS IN OPERATING THE PORTAL AND IN PROVIDING THE PORTAL SERVICES YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USING THE PORTAL AND PORTAL SERVICES.
UNDER NO CIRCUMSTANCES SHALL IMS, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS AND THIRD-PARTY CONTRACTORS AND SUPPLIERS (COLLECTIVELY THE "IMS PARTIES") BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER THAT IS SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF (OR THE INABILITY TO USE) THE PORTAL OR THE PROVISION OF THE PORTAL SERVICES (REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, EQUITY, STRICT LIABILITY, BY STATUTE OR OTHERWISE AND REGARDLESS OF THE OCCURANCE OF A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE) THAT EXCEEDS, IN THE AGGREGATE, THE AMOUNTS THAT YOU HAVE PAID IMS IN RESPECT OF THE PORTAL SERVICES IN THE TWELVE MONTH PERIOD THAT IMMEDIATELY PRECEEDED THE DATE OF YOUR CLAIM.
IN NO EVENT WHATSOEVER SHALL ANY OF THE IMS PARTIES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT IS SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF PORTAL OR THE PROVISION OF THE PORTAL SERVICES (INCLUDING IN ANY CONNECTION WITH THE TRANSMISSION OR DOWNLOADING OR STORAGE OF ANY DATA OR SUBMISSIONS TO OR FROM THE PORTAL OR THE USE OF, OR RELIANCE ON, ANY DRIVESYNC REPORTS OR OTHER INFORMATION OR DATA CONTAINED ON OR PROVIDED THROUGH THE PORTAL OR PORTAL SERVICES, OR LOSS OF OR DAMAGE TO FILES OR DATA OR ANY COSTS OF RECOVERING OR REPRODUCING ANY FILES OR DATA OR LOSS OF USE OR LACK OF AVAILABILITY OF SERVICES OR ANY BUSINESS INTERRUPTION OR LOSS OF REVENUE OR PROFIT OR ANY OTHER ECONOMIC LOSS WHATSOEVER) HOWEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION AND WHETHER OR NOT FORESEEABLE, EVEN IF THE IMS PARTIES OR ANY OF THEM HAS BEEN INFORMED IN ADVANCE OR OUGHT REASONABLY TO HAVE KNOWN OF THE POTENTIAL FOR SUCH DAMAGES.
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE AND USE OF THE PORTAL, PORTAL SERVICES AND ANY PROVIDED SUPPORT IS ASSUMED BY YOU.
13. Global Positioning System (GPS) Technology and Limitations
You acknowledge that the DriveSync product includes global positioning system (GPS) receiver technology and that DriveSync Reports are derived in part through the use of such GPS technology. GPS technology and the application or use of such technology has, or may, have certain limitations that may affect your use of the DriveSync product, including DriveSync Reports derived from the use of the DriveSync product and the Portal Services. For example (and without limitation to all potential limitations or impacts) changing atmospheric conditions, sources of electromagnetic radiation, man-made sources of other interference, geographic features, the re-introduction of "selective availability" functionality and other factors or issues applicable to GPS technology may limit or impact your use of the DriveSync product, the Portal Services and any resulting DriveSync Reports.
You agree that the DriveSync product and Portal Services (including any Driver Data or Driving Data) are not intended to be used for (and that you will not use same for) safety of life applications or for any other application in which the use of or inability to use or the accuracy or completeness or reliability of the DriveSync product, the Portal Services and any DriveSync Reports, could create a situation where personal injury or death may occur.
Customer agrees to defend, indemnify, and hold harmless IMS from and including but not limited to, any claims, actions, demands, losses, liabilities, damages, costs and expenses suffered by such persons, including without limitation, reasonable legal and accounting fees, alleging or resulting, directly or indirectly, from or in any connection with Customer's (or any End User's): (a) breach of this Agreement; (b) access to the Portal or use of the Portal Services; and (c) uploading to or other provision of or disclosure to IMS of any Registration Data, Raw Data or any other information or data and the use of same by IMS or its subcontractors or affiliates as contemplated hereunder (d) use of the Driving Data by Customer that may give rise to liability by third parties. IMS shall provide notice to you of any such claim or losses and shall reasonably assist you, at your expense, in defending any such claim.
All product, brand and company names and logos and trade-marks displayed on the Portal or used in connection with the Portal Services (including without limitation the DriveSync trade mark) are the trade-marks of IMS (or its suppliers or third party licensors). Any use of any of the marks appearing on the Portal or in connection with the Portal Services without the express written consent of IMS or the owner of the mark, as appropriate, is strictly prohibited.
If you wish to create a hyperlink to this Portal please contact email@example.com. No "deep links" into the Portal are permitted. By linking (to the extent permitted), you agree that IMS may require the link to be removed if, in IMS' sole opinion, any aspect of the linking portal or website, its content or any other matter relating to the link is objectionable to IMS.
17. No Framing, etc
Any copying, republication or redistribution of any part of the Portal, including by caching, framing or similar means, is expressly prohibited without the prior written consent of IMS.
18. English Language
The parties declare that they have required that this Agreement and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu'elles exigent que cette entente et tous les documents y afférents, soit pour le présent ou le futur, soient rédigés en langue anglaise seulement.
The Portal is administered by IMS from, a site that is located in Waterloo, Ontario, Canada. You acknowledge and agree that your use of the Portal and all of the communications, transmissions and transactions associated with the Portal and the provision of the Portal Services shall be deemed to have occurred in the Province of Ontario, Canada, and you and IMS agree that this Agreement shall be exclusively governed by, construed and interpreted in accordance with the laws of the State of New York, U.S.A.. The parties agree that neither the United Nations Convention of the International Sale of Goods or the (U.S.) Uniform Computer Information Transactions Act shall apply to this Agreement. The parties irrevocably attorn to the non-exclusive jurisdiction of the Courts of the State of New York in respect of all matters and disputes arising hereunder.
20. General Provisions
No delay or omission by either party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. Any waivers must be in writing and signed by an authorized representative of the party waiving its rights. The Agreement constitutes the entire agreement between the parties as it relates to the access to and use of the Portal and Portal Services and the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral between IMS and you. The Agreement may only be amended or supplemented by written agreement executed by each of the parties. In this Agreement: (a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (b) all usage of the word "including" or the phrase "e.g.," shall mean "including, without limitation," throughout the Agreement; (c) all dollar amounts are expressed in United States currency unless expressly provided otherwise; (d) the division of the Agreement into separate Sections, Subsections and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of the Agreement; (e) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; and (f) the parties agree that the Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the Agreement.
21. Severability / Electronic Documents
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law. This electronic document, and all other electronic documents referred to or incorporated herein, will be: (a) deemed for all purposes to be a "writing" or "in writing," and to comply with all statutory, contractual, and other legal requirements for a writing; and (b) legally enforceable as a signed writing as against the parties subject to the electronic documents. A printed version of the Agreement and any notice given in electronic form shall be admissible in judicial proceedings or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
22. Conformance with Law
In addition to complying with this Agreement, you agree to use the Portal and Portal Services for lawful purposes only and in a manner consistent with all applicable local, national or international laws and regulations, including all privacy and personal information laws. The Portal and any DriveSync Reports shall not be used where, and to any extent, such use is prohibited by law. Your use of the Portal from any location is subject to your compliance with all applicable laws and regulations that may be applicable to you. You agree, and confirm, that your use of the Portal is in full compliance with the laws of the jurisdiction(s) to which you are subject, and that you are not prohibited from using the Portal due to any restriction whatsoever and that you have obtained all necessary consents and approvals required or reasonably necessary.
23. Agreement Not Transferable
This Agreement shall be binding upon and shall ensure to the benefit of and be enforceable by each of the parties, their respective successors and permitted assigns.
You may not assign all or any part of this Agreement. If you are a business or other entity and have undertaken a reorganization such that you wish that an affiliate be responsible to manage DriveSync products purchased by you or if you sell all or substantially all of your assets to another person or you are acquired by or merge with another person (in each case such other person a "Transferee") IMS shall permit such Transferee to register on the Portal to receive Portal Services in respect of such DriveSync products originally purchased by you, provided that: (a) you provide prior written notice to IMS; (b) the Transferee registers on the Portal and agrees to the current form of Agreement with IMS; (c) your rights hereunder shall terminate effective upon such registration (and you may not re-register). If you grant a security interest in your assets and undertakings the secured party shall have no rights to use the Portal or transfer this Agreement. IMS may assign this Agreement without your consent at any time.
24. Changes To Terms And Conditions
IMS may revise the Agreement at any time by posting the amended Agreement on the Portal and changing the effective date. The next time you log into the Portal IMS will notify You of the amended Agreement, provide you with the opportunity to review the amended Agreement and require that you accept the revised Agreement prior to being permitted to access and use the Portal and Portal Services. Your agreement to the amended Agreement shall become effective at the time you indicate your agreement to IMS.
The effective date of this Agreement is the date on which you have accepted the Agreement in accordance with the procedures set out herein. This Agreement is effective until terminated by IMS with or without cause or until such time as you cease to use the Portal and Portal Services. IMS may terminate this Agreement if you fail to comply with any provision of this Agreement. The disclaimers, limitations on liability, termination, interpretative provisions, your warranties and indemnities shall survive any termination of this Agreement. IMS shall not be required to refund to you any amounts prepaid for use of any Portal Services if IMS has terminated your account or your use of, or access to, the Portal and/or any of the Portal Services for breach of this Agreement.
All notices and communications by or to a party shall be in writing and shall be made via e-mail to firstname.lastname@example.org for notices to IMS, or to the e-mail address that you provided to IMS as part of the Registration Data for notices to you. Either party may revise its contact information by sending the other the corrected email address to the address specified in the preceding sentence. IMS may also broadcast notices or messages, or other matters of importance, on the Portal; and you agree that such broadcasts shall constitute notice to you whether or not you actually access the communication or notice via the Portal. Notice by e-mail or posting on the Portal shall be deemed given forty-eight (48) hours after the e-mail is sent or is posted, unless in the case of e-mail the sending party is notified that the e-mail address is invalid.
27. Third Party Data Terms
Google Maps/Earth Terms of Service
By downloading, installing, or using the Google Earth software, accessing or using the Google Maps service (together, the "Products" or "Services"), or accessing or using any of the content available within the Products, you agree to be bound by the following: (1) the Google Terms of Service (the "Universal Terms"); (2) the terms found on Google's Legal Notices page (the "Legal Notices"); and (3) the additional terms and conditions set forth below (the "Additional Terms"). Before you continue, you should read each of these three documents, as together they form a binding agreement between you and Google regarding your use of the Products. Collectively, the Universal Terms, the Legal Notices, and the Additional Terms are referred to as the "Terms".
1. Use of the Products. Google grants you a non-exclusive, non-transferable license to access the Google Maps service, to download and use the Google Earth software and service, and to access the Content (as defined below) within the Products and according to the Terms.
2. Restrictions on Use. Unless you have received prior written authorization from Google (or, as applicable, from the provider of particular Content), you must not:
(a) access or use the Products or any Content through any technology or means other than those provided in the Products, or through other explicitly authorized means Google may designate (such as through the Google Maps/Google Earth APIs);
(b) copy, translate, modify, or make derivative works of the Content or any part thereof;
(c) redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, or otherwise make the Products or Content available to third parties;
(d) reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof, unless this is expressly permitted or required by applicable law;
(e) use the Products in a manner that gives you or any other person access to mass downloads or bulk feeds of any Content, including but not limited to numerical latitude or longitude coordinates, imagery, and visible map data;
(f) delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Products or the Content; or
(g) use the Service or Content with any products, systems, or applications for or in connection with (i) real time navigation or route guidance, including but not limited to turn-by-turn route guidance that is synchronized to the position of a user's sensor-enabled device; or (ii) any systems or functions for automatic or autonomous control of vehicle behavior.
3. Appropriate Conduct; Compliance with Law and Google Policies. You agree that you are responsible for your own conduct and content while using the Products, and for any consequences thereof. You agree to use the Products only for purposes that are legal, proper and in accordance with the Terms and any applicable policies or guidelines Google may make available. By way of example, and not as a limitation, you agree that when using the Products or the Content, you will not:
(a) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
(b) upload, post, email, transmit or otherwise make available any inappropriate, defamatory, obscene, or unlawful content;
(c) upload, post, transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of the rights, or have the permission of the owner or other legal justification to use such content;
(d) upload, post, email, transmit or otherwise make available messages that promote pyramid schemes, chain letters, or disruptive commercial messages or advertisements;
(e) upload, post, email, transmit or otherwise make available any other content, message, or communication prohibited by applicable law, the Terms or any applicable Product policies or guidelines;
(f) download any file posted by another that you know, or reasonably should know, cannot be legally distributed in such manner;
(g) impersonate another person or entity, or falsify or delete any author attributions or proprietary designations or labels of the origin or source of Content, software or other material;
(h) restrict or inhibit any other user from using and enjoying the Products or Google services;
(i) interfere with or disrupt Google services or servers or networks connected to Google services, or disobey any requirements, procedures, policies or regulations of networks connected to Google services;
(j) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Google services or Content, or collect information about users for any unauthorized purpose;
(k) submit content that falsely expresses or implies that such content is sponsored or endorsed by Google;
(l) create user accounts by automated means or under false or fraudulent pretenses;
(m) promote or provide instructional information about illegal activities;
(n) promote physical harm or injury against any group or individual; or
(o) transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
4. Content in the Products. Google Maps and Google Earth allow you to access and view a variety of content, including but not limited to photographic imagery, map and terrain data, business listings, reviews, traffic, and other related information provided by Google, its licensors, and its users (the "Content"). Additionally, you may choose to access other third party content made available in the Products through Google services such as Google Gadgets. You understand and agree to the following:
(a) Map data, traffic, directions, and related Content are provided for planning purposes only. You may find that weather conditions, construction projects, closures, or other events may cause road conditions or directions to differ from the map results. You should exercise judgment in your use of this Content.
(b) By using the Products, you do not receive any, and Google and/or its licensors and users retain all ownership rights in the Content. You may not use, access or allow others to use or access the Content in any manner not permitted under the Terms, unless you have been specifically permitted to do so by Google or by the owner of that Content, in a separate agreement.
(c) Certain Content is provided under license from third parties, including but not limited to Tele Atlas B.V. ("Tele Atlas"), and is subject to copyright and other intellectual property rights owned by or licensed to Tele Atlas and/or such third parties. You may be held liable for any unauthorized copying or disclosure of this Content. Your use of Tele Atlas Content, including but not limited to printing or use in marketing or promotional materials, is subject to additional restrictions located in the Legal Notices page.
5. Additional Terms for Google Earth.
(a) Export Restrictions. The Google Earth software is subject to United States export controls. By using the Google Earth software, you agree to use the software only for purposes that are legal, proper and in accordance with these Terms. Specifically, you agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, and trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control.
(b) Automatic Updates. The Google Earth software may communicate with Google servers from time to time to check for available updates to the software, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). By installing the Google Earth software, you agree to automatically request and receive Updates.
6. DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY.
(a) GOOGLE AND ITS LICENSORS (INCLUDING BUT NOT LIMITED TO TELE ATLAS AND ITS SUPPLIERS) MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY CONTENT OR THE PRODUCTS.
(b) SUBJECT TO SECTION 14.1 OF THE GOOGLE UNIVERSAL TERMS, GOOGLE AND ITS LICENSORS (INCLUDING BUT NOT LIMITED TO TELE ATLAS AND ITS SUPPLIERS) DISCLAIM ALL WARRANTIES IN CONNECTION WITH THE CONTENT AND THE PRODUCTS, AND WILL NOT BE LIABLE FOR ANY DAMAGE OR LOSS RESULTING FROM YOUR USE OF THE CONTENT OR THE PRODUCTS.
7. U.S. Government Restricted Rights. If the Products are being used or accessed by or on behalf of the United States government, such use is subject to additional terms located in the "Government End Users" section of Google's Legal Notices page.