PERMISHARE TERMS OF SERVICE
LAST UPDATED: NOVEMBER 1, 2020
PLEASE READ THESE PERMISHARE TERMS OF SERVICE CAREFULLY BEFORE USING THE PERMISHARE SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHERWISE ASSENTING TO THIS AGREEMENT YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR AN ENTITY FOR WHOSE BENEFIT THIS SERVICE IS BEING USED, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This Agreement applies to the PermiShare software, web portal and companion mobile application platform from TransReport Services Inc. (“TransReport”) and the customer agreeing to this Agreement (“Customer”). In consideration of the mutual covenants and agreements set forth herein, including the Order Terms, and other good and valuable consideration, the receipt and sufficiency of which is hereby confirmed by each party), the parties agree as follows:
1.1“Agreement” means these PermiShare Terms of Service and any applicable Order Terms.
1.2“App” means the PermiShare Software made available to access the PermiShare Platform by a companion mobile device.
1.3 “Customer Data” means all data and documents submitted in any form by Customer, directly or indirectly, to the PermiShare Platform, including personal or account data.
1.4 “Documentation” means the then-current user manuals and similar reference materials, whether in printed or machine-readable form, generally furnished with the PermiShare Software by TransReport to its licensees.
1.5 “Order Terms” means the selected features, options, fees and other terms agreed during the ordering process for the PermiShare Platform, and any statements of work executed by both parties for Consulting Services.
1.6 “PermiShare Platform” means the software as a service deployment, including the PermiShare Software and Third Party Software, used to deliver access to PermiShare through the cloud to Customer.
1.7 “PermiShare Software” means the proprietary PermiShare software and Documentation, as modified from time to time.
1.8 “Personal Information” means information about an identifiable individual or other information that is subject to any Privacy Law.
1.9 “Privacy Laws” means the federal Personal Information Protection and Electronic Documents Act (Canada), as amended or supplemented from time to time, and any applicable legislation now in force or that may in the future come into force governing the protection of personal information applicable to the parties or to the activities contemplated under this Agreement.
1.10 “Third Party Software” means the proprietary software of certain third parties that TransReport embeds within the PermiShare Platform.
2. PERMISHARE PLATFORM
2.1 Subject to the terms of this Agreement and each applicable Order Terms, TransReport will use commercially reasonable efforts to make the PermiShare Platform, as updated from time to time, available to Customer during the Term, for up to the number of users or other usage terms set forth in an applicable Order Terms.
2.2 Customer understands and agrees that Customer’s use of the PermiShare Platform may be interrupted by circumstances beyond TransReport’s reasonable control, including computer, telecommunications, Internet service provider or hosting facility failures, network intrusions, denial of service attacks, or delays involving hardware, software or power systems not in TransReport’s possession or control (together “Third Party Acts”). TransReport will not be responsible or otherwise liable for any Third Party Acts.
2.3 TransReport will provide notification to Customer of scheduled system down times or, if TransReport is aware, of any unscheduled downtime. TransReport will also notify Customer without unreasonable delay if TransReport detects or is informed of any material problems relating to the PermiShare Platform.
2.4 Customer hereby authorizes and grants (and Customer has obtained any necessary rights from its personnel, clients, vendors and users to make such authorization and grant) to TransReport and its vendors the royalty-free right to collect, create, receive, store, access, track, aggregate, reproduce, transmit, retransmit, transfer, distribute, display, process, convert or otherwise use Usage Data, as defined below, to deliver, monitor and manage software and services, provide support, improve service offerings, offer other products and services, and for internal analysis purposes. “Usage Data” means aggregated and anonymized information about Customer’s or its users’ usage of TransReport’s software and services, such as access and usage data (including each user’s IP address, time stamps, clickstream information, and details of activity on TransReport’s software), system performance data, and other information related to software and hardware used by Customer or its users. Usage Data does not include Customer Data.
2.5 To use the App, Customer must have a mobile device that is compatible with the App, and Customer is responsible for any wireless or wi–fi connectivity to use the App. TransReport does not warrant that the App will be compatible with Customer’s mobile device. Customer may use mobile data in connection with the App and may incur additional charges from Customer’s wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that TransReport may, from time to time, issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this Agreement will apply to all such upgrades.
2.6 If the parties agree on a separate statement of work for the provision of certain consulting services (“Consulting Services”), then subject to the terms and conditions of this Section, TransReport will use commercially reasonable efforts to provide the Consulting Services set forth in an applicable Order Terms executed by the parties and referencing this Agreement. Unless otherwise explicitly agreed to in the Order Terms, all Consulting Services are provided on a time and materials basis at TransReport’s then-current rates for such Consulting Services. Customer will have a non-exclusive, non-transferable license to access the items provided as part of the Consulting Services subject to the terms of this Agreement. The date and time for the provisions of all Consulting Services will be as agreed to by the parties. In the event of a conflict between the terms of this Agreement and the terms of the Order Terms for Consulting Services, the terms of this Agreement will control with respect to the obligations under Sections 4 (Confidential Information), 9 (Ownership), 11 (Limitation of Liability and Exclusive Remedies) and 12 (Indemnity).
2.7 Customer acknowledges that TransReport may use personnel, employees, third party contractors and vendors located internationally to provide facilities, equipment, and maintenance, and to perform other supporting services for the PermiShare Platform.
3. FEES AND PAYMENTS
Customer agrees to pay TransReport the fees set forth in the applicable Order Terms. Unless stated otherwise in the applicable Order Terms, all fees are payable monthly, in advance, and will be charged on the same day of each calendar month as the initial payment. Payment will be effected from the Customer’s credit card account established during the subscription process, as may be modified through the PermiShare Platform. Customer will pay all sales, use, GST/HST, withholding, customs, value-added and similar taxes or levies resulting from this Agreement, including any taxes with respect to the PermiShare Platform or Consulting Services, excluding taxes based on TransReport’s net income. All taxes owed by Customer hereunder will become due and payable when billed to Customer, or when assessed, levied or billed by the appropriate tax authority, even if such billing occurs subsequent to expiration or termination of this Agreement.
4. CONFIDENTIAL INFORMATION
4.1 By virtue of this Agreement, either party may have access to the other party’s Confidential Information. “Confidential Information” means non-public information clearly identified as proprietary or confidential, or which given its nature and the circumstances surrounding its disclosure should reasonably be construed to be confidential including the PermiShare Software, Customer Data, information concerning business methods, business plans, customer and vendor information, methodologies, internal policies and procedures, pricing terms, and test results (including the results of any evaluation of the PermiShare Software or of a pre-production release thereof), code, inventions, analyses, any business, technical, and financial information, documentation, data, specifications, audit reports, auditor opinion letters, user identification and passwords, and any third party software or systems and related information maintained by Customer which TransReport may require in order to render the PermiShare Platform.
4.2 Each party agrees: to hold the other party’s Confidential Information in confidence during the term of this Agreement and thereafter; not to use the Confidential Information of the other party for any purpose other than to perform its obligations or exercise its rights hereunder; not to disclose the other party’s Confidential Information, or otherwise make the other party’s Confidential Information available in any form to any third party except that TransReport may disclose Customer’s Confidential Information to third parties in order to fulfill its obligations hereunder, or to allow such third parties to fulfill their obligations to Customer, provided that such Confidential Information is disclosed subject to obligations of confidentiality as restrictive as those set forth in this Section. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its current or former employees or agents in violation of the terms of this Agreement.
4.3 Confidential Information does not include information that: is or becomes publicly available through no act or omission of the receiving party; the disclosing party regularly discloses to third parties without restriction on disclosure; is independently developed by employees of the receiving party who had no access to such information; or is already rightfully known to the receiving party without nondisclosure obligations before it received such information. Anything to the contrary contained in this Section notwithstanding, the parties understand that the foregoing exceptions, as applied to Personal Information, may be limited by applicable Privacy Laws.
4.4 The receiving party may use or disclose Confidential Information to the extent: approved in writing by the disclosing party or required by law pursuant to a subpoena, court order or other similar process or governmental requirement, including applicable securities laws; provided, however, that prior to any such compelled disclosure, the receiving party will (to the extent permitted by applicable law) give the disclosing party reasonable advance notice of any such disclosure and cooperate with the disclosing party in protecting against any such disclosure or obtaining a protective order.
5. CUSTOMER’S OBLIGATIONS
In order to access or use the PermiShare Platform, Customer agrees to remain responsible for: all actions or inactions of users, and for each user’s compliance with this Agreement, compliance with laws and disclosure obligations; the Customer Data, including, but not limited to, its accuracy, quality, completeness, integrity, reliability, maintenance, validation, and reconciliation; and selecting, protecting, maintaining and deactivating usernames, passwords, and access information (“Credentials”) in accordance with its obligations, TransReport’s instructions, published procedures and applicable law, and will only provide such Credentials to its authorized users. Without limiting the foregoing, Customer will exercise reasonable care to: prevent disclosure of Credentials to anyone other than authorized users; otherwise prevent any unauthorized person or entity from gaining access to the PermiShare Platform; and inactivate Credentials of any users who Customer no longer authorizes to access or use the PermiShare Platform. Customer will promptly notify TransReport of any loss, theft or unauthorized use of any Customer Credential of which it becomes aware. Customer acknowledges and agrees that Credentials may be created at Customer’s sole discretion for Customer’s users and that TransReport makes no recommendations or warranties with respect thereto. Customer will promptly notify TransReport of any problem with Customer Data or the PermiShare Platform provided hereunder.
6. USE RESTRICTIONS
The following provisions (“Use Restrictions”) will apply with respect to Customer’s access to and use of the PermiShare Platform:
6.1 Customer will use the PermiShare Platform only for internal purposes solely as contemplated by this Agreement and each Order Terms, and for no other purposes, including acting as a service bureau; and comply with all applicable local, provincial, state, federal and foreign laws in accessing or using the PermiShare Platform. Only employees of Customer may access or use the PermiShare Platform. Unless otherwise approved, in writing, by TransReport, no third party firms working for Customer may access or use the PermiShare Platform. TransReport reserves the right to modify Customer’s fees hereunder for any such permitted access or use.
6.2 Customer will not, and will not allow any third party to, and will not attempt to: interfere with or disrupt the integrity or performance of the PermiShare Platform or the data contained therein; attempt to gain unauthorized access to the PermiShare Platform or its related systems or networks, unlicensed PermiShare Software or any third party’s data; use the PermiShare Platform to: send spam or otherwise duplicative or unsolicited messages whether or not in violation of applicable laws; send or store infringing, obscene, threatening, libelous, unlawful or tortious material, including material that is harmful to children or violates third party privacy or proprietary rights; send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; be a target for vulnerability scans or penetration tests; or build a competitive product or service; (iv) modify, copy or create derivative works based on the PermiShare Platform; (v) download or copy any ideas, features, functions or graphics of the PermiShare Platform; (vi) exercise any rights with respect to the PermiShare Platform other than those expressly granted in an applicable Order Terms or this Agreement; (vii) provide TransReport with any materials that it does not have the right or license to do so; (viii) disassemble, decompile or otherwise reverse engineer the PermiShare Platform; (ix) merge or embed the PermiShare Platform with any other computer program not authorized by TransReport; (x) grant any security interest in the PermiShare Platform or Customer’s rights with respect thereto; or (xi) remove or alter any product identification, proprietary, confidentiality, copyright or other notices placed upon or in the PermiShare Platform.
7. SECURITY OF CUSTOMER DATA
7.1 Each party will maintain physical, electronic and procedural safeguards reasonably designed to achieve the following objectives: to ensure the security of Customer Data; to protect against anticipated threats or hazards to the security or integrity of the Customer Data; and to protect against unauthorized access to or use of Customer Data. Without limiting the generality of the foregoing, each party agrees to exercise reasonable care to: prevent any unauthorized person or entity from monitoring or gaining access to the PermiShare Platform or Customer Data; and prevent disclosure of Credentials and other access control information to anyone other than such party’s authorized employees or agents. Customer will remain responsible for all security breaches caused by or arising out of Customer’s actions or inactions, including Customer’s failure to comply with the Use Restrictions.
7.2 Both parties agree to promptly notify the other party in accordance with applicable laws in the event of any unauthorized access to or disclosure of Customer Data provided that each party will be permitted to reasonably investigate the alleged unauthorized access, use, or disclosure before notifying the other party. Each party agrees to promptly take reasonable steps to rectify any such unauthorized access, use or disclosure and use reasonable efforts to implement safeguards to protect against recurrences. Customer agrees that TransReport may (without limiting any other rights or remedies available to TransReport) immediately disable user accounts, halt Internet traffic or communications to or from all servers or workstations containing Customer Data or to the PermiShare Platform, or take any other reasonable actions necessary to contain an actual or threatened security breach or to limit a party’s exposure as a result of a security breach, to respond to service or technical problems or as requested by Customer; to comply with applicable law or requests from government authorities or where Customer’s use of the PermiShare Platform causes TransReport to be in violation or potential violation of laws, regulations or government requirements; to respond to actual or suspected fraudulent or other illegal activity or to prevent actions that may compromise the integrity, quality, performance or security of the PermiShare Platform. TransReport will restore access promptly after the event giving rise to suspension has been resolved.
8. TERM, SUSPENSION AND TERMINATION
8.1 The term for the PermiShare Platform will be as set forth in an applicable Order Terms, unless this Agreement is terminated earlier in accordance with its terms. Termination of this Agreement will automatically terminate all applicable Order Terms, but will not terminate any software license and support agreement or any order schedule, order acknowledgement, or other document between the parties.
8.2 TransReport reserves the right, to suspend Customer’s access to the PermiShare Platform, for any of the following reasons: to prevent damages to, or degradation of, the PermiShare Platform or TransReport’s systems; Customer’s unauthorized use of the PermiShare Platform; Customer’s use of the PermiShare Platform causes TransReport to be in violation or potential violation of applicable law, including, but not limited to, export or import law or governmental sanctions; or (iv) if payment is not made or effected by Customer when due. Any such suspension will be without prejudice to Customer’s continuing obligations or any other rights available to TransReport under this Agreement. TransReport will use reasonable efforts to provide Customer with e-mail notice prior to or promptly following any suspension of access to the PermiShare Platform. TransReport will restore access promptly after the event giving rise to suspension has been resolved. This section will not be construed as imposing any obligation or duty on TransReport to monitor Customer’s use of the PermiShare Platform.
8.3 TransReport may terminate this Agreement without further notice if Customer commits any material breach of this Agreement (including the obligation to pay amounts due thereunder) and fails to cure such breach within thirty (30) days following written notice of such failure. In the event of any termination by TransReport, all remaining license, maintenance, service and associated fees will become immediately due and payable.
8.4 Customer may terminate this Agreement without further notice if TransReport commits any material breach of this Agreement and fails to cure such breach within thirty (30) days following written notice of such failure.
8.5 The following Sections and obligations will survive termination of this Agreement: Sections 3 through 7, 8.6, 9, 10.3, and 11 through 14. All other rights and obligations of the parties under this Agreement will cease upon its termination, and each party will, if requested by the other, promptly destroy (with written certification thereof) or return a party’s Confidential Information. This requirement applies to all copies in any form, partial or complete, and whether or not merged into other materials, excluding Confidential Information that it is required to keep for compliance purposes under internal compliance policies or as required by applicable law, rules, regulations, professional standards, a court or regulatory agency; or has been created electronically pursuant to automatic or ordinary course archiving, back-up, security or disaster recovery systems or procedures where there is no regular or general user access to such Confidential Information. The confidentiality provisions of this Agreement will continue to apply to any information retained.
9.1 The PermiShare Platform and any derivative works thereof, including deliverables provided as part of the Consulting Services, remain the property of TransReport, and subject to the limited rights expressly granted to Customer hereunder, TransReport reserves all rights, title and interest in and to the PermiShare Platform, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
9.2 This Agreement confers to Customer only the right to access the PermiShare Platform while this Agreement (and the applicable Order Terms) is in effect. Upon termination of this Agreement, Customer will immediately cease to use any and all of TransReport’s name, trademarks or service marks to the extent any such rights have been granted by TransReport. It does not convey any rights of ownership in or to the PermiShare Platform or any other TransReport-provided materials; or the products or services of any TransReport suppliers. All right, title, and interest in the PermiShare Software or any portion thereof, including all patent rights, copyrights, trademarks, related goodwill, and confidential or proprietary information and all enhancements and modifications (including all ideas and know how) to and derivative works based upon the PermiShare Software constitutes and will remain the property of TransReport and its suppliers. Customer will not challenge or assist others to challenge TransReport’s trademarks (except to the extent such restriction is strictly prohibited by law) or the registration thereof or attempt to register any trademarks or trade names confusingly similar to those of TransReport.
9.3 All right, title, and interest that Customer may have in its Customer Data and internal programs will remain the property of Customer.
9.4 Customer hereby grants to TransReport a royalty–free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into TransReport’s products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to TransReport’s products or services.
10. WARRANTY AND DISCLAIMER OF WARRANTY
10.1 Customer represents, warrants and covenants to TransReport that it is and will continue to be authorized by, and has obtained and will continue to have, proper authorization and consent to submit Customer Data to and use Customer Data with the PermiShare Platform. Customer further represents and warrants that it will not use any Customer Data in any manner that is not authorized or contemplated in this Agreement; not in keeping with the authorization from the applicable owner of such Customer Data; or that is in violation of applicable law.
10.2 TransReport represents, warrants and covenants to Customer that: the PermiShare Software will operate substantially in accordance with the functional requirements set forth in the Documentation; and it will provide the PermiShare Platform in a manner consistent with general industry standards reasonably applicable to the provision thereof and will only use competent and qualified personnel to provide the PermiShare Platform.
10.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, TRANSREPORT MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO DEALER, AGENT, OR EMPLOYEE OF TRANSREPORT IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY. ALL PRE-PRODUCTION RELEASES OF THE SOFTWARE MADE AVAILABLE TO OR ACCESSED BY CUSTOMER THROUGH THE PERMISHARE PLATFORM ARE PROVIDED “AS IS”. TransReport does not warrant that Customer’s or a user’s use of the PermiShare Platform will be uninterrupted, that the operation of the PermiShare Platform will be error-free, or that the PermiShare Platform will sufficiently meet Customer’s requirements. TransReport will not be liable for any vehicle or driver detention, citations or legal action by a government or law enforcement agency whether from the operation or non-operation of the PermiShare Platform.
10.4 The PermiShare Platform is not intended to be a complete replacement for an in-cab, paper-based permit book. Certain U.S. and Canadian federal, state and provincial governmental authorities continue to require certain paper hardcopy documents be carried in a vehicle or on the person, and Customer is responsible for ensuring compliance with such requirements.
10.5 TransReport Services Inc. dba PermiShare will not be responsible for any tickets, fines, penalties or out of service orders issued by governmental authorities to users of PermiShare if Customer does not have a hard copy of an operating authority, license, permit, qualification credential or certification or other required document on hand.
11. LIMITATION OF LIABILITY AND EXCLUSIVITY OF REMEDIES
11.1 For any breach of the warranties set forth in Section 10.2, Customer’s exclusive remedy and TransReport’s entire liability is limited to the correction or replacement, as soon as practicable, of the PermiShare Platform, or part thereof, which TransReport determines to be the cause of the error that gives rise to such breach.
11.2 TRANSREPORT AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OR DAMAGE TO GOODWILL, LOSS OF USE, BUSINESS INTERRUPTION OR LOSS OF DATA, REGARDLESS OF THE BASIS OR LEGAL THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF TRANSREPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRANSREPORT SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY CUSTOMER (OR ANY PERSON CLAIMING UNDER OR THROUGH CUSTOMER), WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING FOR NEGLIGENCE OR FOR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE HOWSOEVER, UNLESS THEY RESULTED SOLELY FROM THE GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD OF TRANSREPORT AND ARE NOT OTHERWISE EXCLUDED OR LIMITED BY THIS CLAUSE 11.
11.3 TRANSREPORT’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNTS RECEIVED FROM CUSTOMER BY TRANSREPORT AS FEES FOR THE APPLICABLE ORDER TERMS OVER THE TWELVE MONTH PERIOD IMMEDIATELY PRECEEDING THE OCCURRENCE OF THE EVENT THAT IS THE BASIS FOR THE CLAIM.
11.4 THE LIMITATION OF LIABILITY AND EXCLUSIVITY OF REMEDY PROVISIONS IN THIS PERMISHARE TERMS OF SERVICE SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF A LIMITED REMEDY HEREIN.
11.5 This Section 11 allocates the risks under this Agreement between TransReport and Customer. TransReport’s pricing reflects this allocation of risk and the limitations specified in this Agreement.
12.1 Except for TransReport’s indemnification obligations hereunder, Customer will, at its own expense: defend or, at its option, settle any claim or suit brought against TransReport by any third party that arises out of: Customer’s or a user’s access or use of the PermiShare Platform, including any claims relating to Customer Data; or access and use of the PermiShare Platform in violation of applicable law; and indemnify, pay, and make TransReport whole for any damages, losses, liabilities, expenses, legal fees and costs of TransReport incurred in connection with and under any final judgment or court approved settlement entered against TransReport on such issue. This obligation is subject to TransReport: notifying Customer promptly in writing of the claim; giving Customer the exclusive control of the defense and settlement thereof; and providing reasonable assistance necessary to perform Customer’s obligations hereunder.
12.2 TransReport will, at its own expense: defend or, at its option, settle any claim or suit brought against Customer during the term of the applicable Order Terms by a third party to the extent based on a claim that Customer’s use of the PermiShare Platform in accordance with the terms of the applicable Order Terms and this Agreement infringes the intellectual property rights of a third party; and pay any final judgment entered against Customer on such issue or any settlement thereof. This obligation is subject to Customer: notifying TransReport promptly in writing of the claim; giving TransReport the exclusive control of the defense and settlement thereof; and providing reasonable assistance necessary to perform TransReport’s obligations hereunder.
12.3 In the event the PermiShare Platform becomes, or in TransReport’s reasonable opinion is likely to become, the subject of an infringement claim as outlined in Section 12.2, TransReport may, at its own cost and expense, either: obtain for Customer the right to continue using the PermiShare Platform, as provided herein, or such portion thereof, as the case may be; modify the PermiShare Platform or replace it with a functional equivalent so that it no longer infringes; or if neither nor is reasonably practicable, terminate the provision of the PermiShare Platform hereunder, or such portion thereof as may be subject to such infringement claim and refund the portion of the fees paid for the period of such license occurring after termination.
12.4 This Section 12 states TransReport’s entire liability and Customer’s exclusive remedy with respect to any claim of intellectual property infringement or misappropriation.
12.5 The indemnifying party may not, without the indemnified party’s prior written consent, settle, compromise or consent to the entry of any judgment in any such commenced or threatened claim in respect of which the indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent: includes an unconditional release of such indemnified party from all liability arising out of such commenced or threatened claim; does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of such indemnified party; and does not exceed the amount for which the indemnifying party is obligated to indemnify the indemnified party under this Agreement.
13. THIRD PARTY SOFTWARE AND APP STORES
13.1 Notwithstanding anything to the contrary contained in this Agreement or any Order Terms, the following additional provisions apply to Third Party Software.
13.2 TRANSREPORT AND ITS SUPPLIERS ARE PROVIDING THIRD PARTY SOFTWARE ON AN “AS IS” BASIS. TRANSREPORT AND ITS SUPPLIERS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO THIRD PARTY SOFTWARE.
13.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TRANSREPORT NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY THIRD PARTY SOFTWARE INCLUDING PENALTIES IMPOSED BY GOVERNMENTAL AUTHORITIES. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.4 Neither TransReport nor its suppliers have any indemnification obligations with respect to Third Party Software.
13.5 TransReport will have no obligation to provide maintenance for Third Party Software apart from its use within the PermiShare Software.
13.6 Customer will comply with all applicable restrictions, requirements and rules that govern applications downloaded through the application store through which Customer obtained the App (for example, the Apple App Store or Google Play). If Customer download and use the iOS version of the App, Customer, the end-user of the App, acknowledge that this Agreement is entered into by and between TransReport and Customer and not with Apple Inc. Notwithstanding the foregoing, Customer acknowledge that Apple Inc. and its subsidiaries are third party beneficiaries of this Agreement and that Apple Inc. has the right (and is deemed to have accepted the right) to enforce this Agreement. Customer acknowledge that Apple Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the App. Customer acknowledge that Customer have reviewed the App Store Terms and Conditions (currently located at www.apple.com/legal/itunes/canada/terms.html#APPS). This Agreement incorporates by reference the Licensed Application End User License Agreement (“LAEULA”) published by Apple Inc. (currently located online at www.apple.com/ legal/itunes/appstore/dev/stdeula). For purposes of this Agreement, the App is considered the “Licensed Application” as defined in the LAEULA and TransReport is considered the “Application Provider” as defined in the LAEULA. If any terms of this Agreement conflict with the terms of the LAEULA, the terms of this Agreement will control. Customer further acknowledge and agree that in no event will Apple Inc. be responsible for any claims relating to the App (including a third party claim that the App infringes that third party’s intellectual property rights) or Customer’s use or possession of the App, including but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. For other mobile operating systems, additional terms may apply to Customer’s downloading, installation and use of the App, as set out in your agreement with the app store or other download facility that Customer uses.
14. EVALUATION SOFTWARE
14.1 Customer may have access to software during the term of this Agreement that is made available to Customer solely for its internal evaluation purposes (“Evaluation Software”). Notwithstanding anything to the contrary in this Agreement, TransReport grants Customer a license to use the Evaluation Software through the PermiShare Platform for a period not to exceed ninety (90) days solely for Customer’s internal evaluation purposes. Customer will not use the Evaluation Software for its own (or any other party’s) data processing, tracking, or reporting operations or otherwise use the Evaluation Software in a production environment.
14.2 TRANSREPORT AND ITS SUPPLIERS ARE PROVIDING THE EVALUATION SOFTWARE ON AN “AS IS” BASIS. TRANSREPORT AND ITS SUPPLIERS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO THE EVALUATION SOFTWARE.
14.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TRANSREPORT NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY EVALUATION SOFTWARE. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.4 TransReport will have no obligation to provide maintenance or technical support for Evaluation Software.
14.5 TransReport may from time to time request suggestions, feedback, or other information from Customer with respect to the Evaluation Software. Any suggestions, feedback or other disclosures made by Customer are, and will be, entirely voluntary on the part of Customer and will not create any obligation on the part of TransReport or any independent confidential relationship between Customer and TransReport. TransReport will be free to use or disclose Customer’s suggestions, feedback or other information as TransReport sees fit, entirely without obligation of any kind to Customer.
15. GENERAL TERMS
15.1 Notices. Any notices (including address change notices) to TransReport must be in writing, delivered: personally, by first class mail (return receipt requested), or by prepaid express courier and are effective upon receipt. Notices must be delivered to TransReport’s headquarters address set forth on TransReport’s website.
15.2 Assignment. Customer may not assign transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without TransReport’s prior written consent. Any purported assignment, sale, transfer, delegation, or other disposition by Customer, except as permitted in this Section, will be null and void. This Agreement and the rights and obligations of each party will be binding upon and will inure to the benefit of the parties and their respective permitted successors in interest and assigns. TransReport reserves the right to modify Customer’s fees hereunder for any such permitted assignment.
15.3 Waiver. The waiver by a party of a breach of this Agreement will not be effective unless in a writing executed by such party and will not be construed as a waiver of any subsequent breach of the same or any other provision, nor will any delay or omission by a party to exercise any of its rights or remedies operate as a waiver of any right or remedy.
15.4 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created between the parties by this Agreement. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.5 Governing Law. This Agreement will be governed by and construed solely in accordance with the substantive laws of the Province of Ontario, without giving effect to any choice of law that would result in the application of the laws of any other jurisdiction.
15.6 Forum and Arbitration. The exclusive jurisdiction and venue for actions related to the subject matter hereof will be the courts located in Toronto, Ontario, and both parties hereby submit to the personal jurisdiction of such courts. To the extent permitted by applicable law, Customer agrees to waive any right Customer may have to commence or participate in any class action against TransReport related to any dispute, claim or controversy in connection with this Agreement and, where applicable, Customer agrees to opt out of any class proceedings against TransReport. Notwithstanding Section 15.5, any dispute between Customer and TransReport arising out of or related to this Agreement must be determined by final and binding arbitration in accordance with the Arbitration Act (Ontario), by notifying the other party to that effect. The parties shall attempt within ten (10) days of the date of notification of referral to arbitration to agree on a single arbitrator familiar with commercial law and the transport industry. If the parties are unable to agree upon an arbitrator, then either party shall have the right to apply to a judge of the Superior Court of Ontario for the appointment of an arbitrator. The arbitrator shall proceed with the hearing within fifteen (15) days of his/her appointment and shall render a decision within fifteen (15) days after the completion of the hearing or such other time periods as may be agreed by the parties. The parties shall apply the procedural rules determined by the arbitrator. Despite section 28(1) of the Arbitration Act, the arbitrator will not, without the written consent of the parties, retain any expert. The arbitration proceedings and the arbitral award shall be held confidential. The hearing will be held in Toronto, Ontario in the English language. The award of the arbitral tribunal shall be final and binding. All the expenses related to the arbitration shall be shared equally by the parties, unless otherwise decided by the arbitrator.
15.7 Force Majeure. Except for the payment of monies due hereunder, neither party will be liable for any delay or failure to perform to the extent due to causes beyond its reasonable control.
15.8 Severability. In the event that any provision of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, it will be enforced to the maximum extent possible so as to fulfill the intent of the parties or, if incapable of such enforcement, will be deemed to be deleted from this Agreement and the remainder of this Agreement will remain in full force and effect.
15.9 Entire Agreement. This Agreement and each applicable Order Terms constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, whether written or oral, with respect to the subject matters discussed herein. No modification of this Agreement will be effective unless contained in a writing signed by an authorized representative of each party. No term or condition contained in Customer’s purchase order or other document will apply. Unless explicitly stated, there are no third-party beneficiaries to this Agreement.
15.10 Interpretation. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any person. In this Agreement, the words “includes” and “including” will be deemed to be followed by the phrase “without limitation”. The headings of the sections of this Agreement are intended for convenience of reference only and are not intended to affect the interpretation of this Agreement.
15.11 Injunctive Relief. Both parties agree that any violation or threatened violation of Section 4 (“Confidential Information”), Section 6 (“Use Restrictions”), Section 7 (“Security of Account Information”) and Section 9 (“Ownership”) will cause irreparable injury to the other party for which monetary damages would not be an adequate remedy and that each party will be entitled to obtain injunctive relief (without the necessity of posting a bond) in addition to any other damages or equitable relief for any breach of the above.
15.12 Controlling Language. This Agreement and all Order Terms are in the English language only, which language will be controlling in all respects. All communications and notices to be made or given pursuant hereto will be in the English language. Il est de la volonté expresse des parties que la présente entente et tous les documents qui s’y rattachent soient rédigés en anglais.
15.13 Export. Customer will comply with all export control laws and economic sanctions programs applicable to Customer’s business and its receipt and use of the PermiShare Platform. TransReport will not be required by the terms of this Agreement to, directly or indirectly, provide any software, services, or technical data that may be prohibited by applicable export control or economic sanctions programs if performed or provided by TransReport, as determined by TransReport in its sole discretion. Customer represents and warrants that it is not a national or resident of a U.S. or Canada sanctioned country; it is not a party prohibited from receiving U.S. or Canadian exports; and the PermiShare Platform is not intended for any end-use prohibited by U.S. or Canadian export control or economic sanctions programs.
The Effective Date of this Agreement is the latter of the dates on which it is signed.