IAS ChassisManager Terms of SERVICE
The following Terms of Service (“TOS”) are between you (“you”, “Motor Carrier” and “your”) and International Asset Systems Limited (“IAS”, “we,” “us” and “our”) and constitute a legal agreement that governs your use of the ChassisManager software, services, and websites (collectively, referred to as the “Service”). You must agree to these TOS before you use the Service. You can agree to these TOS by actually using the Service. If you do not agree to any of the following terms, please do not use the Service. The “Effective Date” for these TOS shall be the day you actually start using the Service. You should print or otherwise save a copy of these TOS for your records.
1.1. “Data” shall mean any Motor Carrier data or information that is provided or entered by Motor Carrier and Users and recorded on the IAS Data repository.
1.2. “Documentation” shall mean the Service description, release notes, training aids and any related materials supplied by IAS to Motor Carrier and Users in connection with the Service contemplated in these TOS.
1.3. “IAS Parties” shall mean IAS, its affiliates, licensors, shareholders, directors, officers, employees, representatives, subcontractors and agents.
1.4. “IAS Site” shall mean the Web sites through which Motor Carrier accesses published IAS information, including, without limitation, www.interasset.com.
1.5. “Chassis Provider” shall mean a company that enters into a Chassis Rental Agreement (as defined in Section 4.4) with Motor Carrier.
1.6. "Term" shall mean the term of these TOS set forth in Section 6.
1.7. “User” shall mean individuals and entities authorized by Motor Carrier to access and use the Service.
2.1. Service Access
IAS shall provide the Service via the Internet to Motor Carrier and Users. Users may access the Service via screens on the IAS Site, via electronic data exchange, or both, subject to the capabilities of the Service.
On its side of the Service Demarcation point, IAS shall provide all necessary software, systems, equipment and telecommunications to host the Service centrally. IAS shall maintain and administer the software and hardware, including installation of patches, updates and upgrades. IAS shall manage reliability, availability and scalability of such software, systems and equipment.
IAS shall not be responsible for provision and operation of Internet services utilized by Users to access the Service, including the IAS Site or IAS data exchange servers. IAS shall not be responsible for any deterioration of performance attributable to latencies in the public Internet.
IAS shall restrict unauthorized access to the Service through use of physical security measures, User ID and password control, and a firewall. IAS shall not be responsible for unauthorized access to Data made with an authorized User ID and password. IAS assigns initial (temporary) passwords to Users. Motor Carrier shall assume sole responsibility for the security of the passwords and for all charges incurred and obligations arising through the use of passwords. IAS is not responsible for the secure network transport of Data on Motor Carrier's side of the Service Demarcation Point.
IAS shall provide system administration, production control, User ID administration, and billing. IAS shall perform issue determination and resolution services. IAS shall proactively monitor operations and processing of the Service. Motor Carrier shall support all matters on the Motor Carrier side of the Service Demarcation Point, including availability of User desktop devices, local printing at Motor Carrier’s locations, and first level help desk support to Motor Carrier’s Users.
The Service, Documentation, and additional services to be provided by IAS, and all communications between IAS and Motor Carrier, will be in English. IAS, may, at its sole discretion, provide communications in languages other than English, as a convenience to Motor Carrier.
3. Rights, License
3.1. Service License
Subject to the terms and conditions of these TOS, IAS grants Motor Carrier during the Term a nonexclusive, nontransferable license to use the Service, and to provide Users with access to the Service, solely for Motor Carrier’s business operations; Motor Carrier and Users shall use the Service only in accordance with the Documentation. Except where prohibited by law, Motor Carrier will not: (i) disassemble, reverse engineer, decompile or otherwise attempt to derive source code from the Service; (ii) modify, adapt, create derivative works based upon, or translate the Service or Documentation or any part thereof; (iii) copy, install or use any components of the Service on any of its computer systems, servers or networks; (iv) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in or access to the Service or Documentation in any form to any party other than authorized Users. Motor Carrier shall require that all Users abide by this Section 3.1. Company shall be responsible for, and indemnify and hold IAS harmless from, any act or omission of Users and of Users' compliance with all of the terms of these TOS. Motor Carrier waives all of those defenses that Motor Carrier may have as to why Motor Carrier should not be liable for Users’ acts, omissions and noncompliance with these TOS.
3.2. Data License
Subject to the terms and conditions of these TOS, Motor Carrier grants IAS a nonexclusive, nontransferable, nonsublicensable license during the Term to store, reproduce, modify, adapt, display, or otherwise use Data to the extent necessary to provide Service to Motor Carrier and Users. IAS does not acquire any rights, express or implied, in the Data, other than the license rights set forth in this Section 3.2, provided however that IAS may compile statistical or performance information related to the operation of the Service, based in whole or in part on the Data and information from Motor Carrier and other IAS Motor Carriers, and IAS shall retain all title, copyright and other proprietary rights in and to any statistical or performance information. IAS may only disclose Data pertaining to use of the Service on an aggregated basis and such disclosed Data will not identify individual Users or Motor Carriers.
The licenses granted in this Section 3 are not a sale and do not convey any rights of ownership in or to the Service, Documentation or Data, or in any portion or copies thereof. All right, title, and interest in and to the Service and Documentation and in any ideas, techniques, know-how, and programs embodied therein is and will remain the sole and exclusive property of IAS or its licensors. All right, title and interest in and to the Data is and will remain the sole and exclusive property of Motor Carrier or its third party licensors.
4. Motor Carrier Responsibilities
Motor Carrier shall make resources available as needed for the deployment and adoption of the Service.
Motor Carrier agrees not to post, upload or otherwise transmit: (i) any Data that is unlawful, harmful or otherwise objectionable or violates any governmental agency, local, state, national or foreign laws; (ii) any Data that Motor Carrier does not have a right to transmit under any law or under contractual or fiduciary relationships; (iii) any Data that infringes any patent, trademark, trade secret, copyright or other proprietary, publicity or privacy rights of any party; (iv) any Data that contains viruses, bugs, Trojan horses, or any other harmful or deleterious programs; (v) any Data which is defamatory in any way or of an obscene nature.
Motor Carrier shall not disguise or misrepresent any Data or origin of such material including by impersonating any person or entity, creating a false identity or falsely stating or otherwise misrepresenting affiliation with a person or entity or by manipulating headers or other identifiers.
Motor Carrier represents and warrants that the Data used by Motor Carrier in connection with these TOS as well as Motor Carrier's and Users' use of the Service does not and will not operate in any manner that would violate any applicable law, rule or regulation.
If Motor Carrier or Users transfer Data electronically through a third-party network, transmission costs for such network shall be for the account of Motor Carrier or Users.
Motor Carrier shall require that all Users abide by this Section 4.2.
4.3. Specific Conduct Rules
Motor Carrier agrees, and agrees to require Users, not to: (i) use any device, software or technique to interfere with or attempt to interfere with the Service, or interfere with any other party's use and enjoyment of the IAS Site; (ii) attempt by any means to gain unauthorized access to the Service, including, but not limited to, access through other accounts not legally registered to Motor Carrier or Users; (iii) pass User IDs or passwords to any third party without written consent from IAS; (iv) use any robot, spider or other automatic device, process or means to access the Service, or use any manual process to monitor or copy content from the IAS Site for any other unauthorized purpose without IAS’s prior express written permission; or (v) engage in any activity that could be construed to constitute unsolicited or unauthorized advertising or promotional materials.
4.4 Chassis Rental
The chassis to be made available in connection with the Service (the “Chassis”) shall be rented pursuant to a separate agreement (the “Chassis Rental Agreement”) with each Chassis Provider. IAS disclaims all responsibility for the selection, suitability, maintenance or any other aspect of the Chassis, including any damage caused by or arising from use of the Chassis, and any and all claims with respect to the Chassis shall be between Motor Carrier and the Chassis Provider. The Chassis rental fee may be invoiced to Motor Carrier by IAS, on behalf of the respective Chassis Provider.
5.1. Confidential Information
"Confidential Information" shall mean all information that is of value to one party and is not publicly available. Confidential Information includes, but is not limited to, the terms and conditions of these TOS, ideas, concepts, business plans, marketing or development plans, designs, specifications, prototypes, proposals, contracts, computer systems and programs, computer data, software code, market data, data regarding suppliers and customers, passwords, financial information, pricing, trade secrets, and confidential information received from third parties. Such information is confidential regardless of whether it be oral, written, electronic or contained in any other documentary material, and whether or not such information is marked as “Confidential”. Confidential Information shall not include information that: (i) is public knowledge at the time of disclosure, (ii) was known by the receiving party before disclosure by the disclosing party, or becomes public knowledge or otherwise known to the receiving party after such disclosure, other than by breach of a confidentiality obligation, or (iii) is independently developed by the receiving party by persons without access to Confidential Information of the disclosing party.
5.2. Protection of Confidential Information
The receiving party shall use all commercially reasonable efforts to (i) not disclose the Confidential Information to any third party, other than its employees, agents or independent contractors who are bound by similar confidentiality obligations, (ii) not use the Confidential Information in any fashion except for purposes of performing these TOS, and (iii) take steps consistent with its protection of its own confidential and proprietary information (but in no event exercise less than reasonable care) to prevent unauthorized disclosure of the Confidential Information. Each party is and shall remain the sole and exclusive owner of its own Confidential Information as defined in Section 5.1.
5.3. No Limitation
Nothing in these TOS shall, or is intended to, limit either party's ability to develop or enhance its services in any manner, including use of knowledge gained as a result of the performance by either party of its obligations.
6. Term, Termination and Suspension
These TOS shall become effective on the Effective Date and be coterminous with the last of the Chassis Rental Agreements then in effect.
6.2. Termination or Suspension With Cause
IAS and Motor Carrier both shall be entitled to terminate these TOS in the event of a failure by the other party to perform any of its material obligations under these TOS if such breach is not cured within sixty (60) days after receipt of notice thereof or within ten (10) days after receipt of such notice if such breach relates to the payment of fees or other amounts owed or a breach which compromises the security of the Service.
Notwithstanding the foregoing, in the event of a breach by Motor Carrier or a User of Section 4.2 or 5.2, in addition to any other remedies available to IAS, IAS will have the right to immediately, and at IAS’s sole discretion, suspend the Service if deemed reasonably necessary by IAS to prevent liability for IAS.
These TOS shall terminate upon the election of and notice from a party to the other if the other party is adjudged insolvent or bankrupt, or the institution of any proceedings by or against the other party seeking relief, reorganization or arrangement under any laws relating to insolvency, or any assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee of any of the other party’s property or assets, or the liquidation, dissolution or winding up of the other party’s business.
6.4. Effect of Termination
As of the effective date of termination of these TOS for any reason, all use of the Service by Motor Carrier shall cease.
6.5. Survival of Certain Terms
The provisions of Sections 3, 5, 6.4, 6.5, 7, 8, 9, 10, and 11.1, 11.3 and 11.4 shall survive termination of these TOS.
7. Warranty Disclaimer
7.1. Warranty Disclaimer
THE IAS PARTIES MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIM (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS; (II) THAT SERVICE WILL BE CONTINUOUS, UNINTERRUPTED AND/OR ERROR-FREE; (III) THE QUALITY, IDENTITY OR RELIABILITY OF ANY USER AND WHETHER MOTOR CARRIER SHOULD DO BUSINESS WITH SUCH USER; AND (IV) THE ACCURACY OF POSTINGS ON, OR SUBMISSIONS TO, THE SERVICE BY OR ON BEHALF OF USERS.
8. Limitation of Liability
8.1. Data and Access
THE IAS PARTIES WILL NOT BE LIABLE FOR CORRUPTION, UNAUTHORIZED DISCLOSURE OR ERASURE OF DATA TRANSMITTED OR RECEIVED OR STORED ON ITS SYSTEM. THE IAS PARTIES WILL NOT BE LIABLE TO MOTOR CARRIER OR ANY USER FOR ANY CLAIMS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES RESULTING FROM THE LOSS OF DATA, INABILITY TO ACCESS THE SERVICE, OR INABILITY TO TRANSMIT OR RECEIVE DATA, CAUSED BY OR RESULTING FROM DELAYS, NON-DELIVERY, OR SERVICE INTERRUPTIONS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF IAS SUCH AS, BUT NOT LIMITED TO, SUPPLIER PROBLEMS, MOTOR CARRIER'S OR USERS’ EQUIPMENT CAPABILITIES, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS.
8.2. Consequential Damages
EXCEPT FOR A VIOLATION BY MOTOR CARRIER OF THE INTELLECTUAL PROPERTY RIGHTS OF IAS AND MOTOR CARRIER’S OBLIGATIONS UNDER SECTION 9, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING TO THESE TOS. UNDER NO CIRCUMSTANCES SHALL IAS’s LIABILITY TO THE MOTOR CARRIER OR TO ANY THIRD PARTY ARISING OUT OF OR RELATED TO THESE TOS, EXCEED IN THE AGGREGATE THE GREATER OF (A) USD 500.00 AND (B) THE TOTAL SERVICE FEES PAID BY MOTOR CARRIER TO IAS UNDER THESE TOS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON SUCH CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE. FOR CERTAINTY, SERVICE FEES EXCLUDE CHASSIS RENTAL FEES.
8.3. Inclusion in User Agreements
MOTOR CARRIER WILL ENSURE THAT THE TERMS AND CONDITIONS SET FORTH UNDER THIS SECTION 8 ARE INCORPORATED INTO ANY AGREEMENT BETWEEN MOTOR CARRIER AND A USER.
Motor Carrier shall indemnify and hold the IAS Parties harmless from and against any and all costs, losses, liabilities and expenses (including reasonable attorneys' fees) arising out of or in connection with: (i) a claim alleging that use of the Service by Motor Carrier or Users infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Motor Carrier or Users of Motor Carrier’s representations and warranties; or (iii) a claim arising from the breach by Motor Carriers or Users of these TOS; provided that IAS (a) promptly gives written notice of the claim to Motor Carrier; (b) gives Motor Carrier sole control of the defense and settlement of the claim (provided that Motor Carrier may not settle or defend any claim unless it unconditionally releases IAS of all liability and such settlement does not affect IAS’s business); (c) provides to Motor Carrier all available information and assistance; and (d) has not compromised or settled such claim without Motor Carrier’s prior written permission, which shall not be unreasonably withheld.
10. Dispute Resolution
10.1. Executive Escalation
Should any dispute arise relating to these TOS, either party may give written notification of such dispute to the designated representative of the other party (the "Designees"). The Designees shall communicate with each other promptly with a view to resolving such dispute within thirty (30) calendar days of commencing their negotiations (or such extended period as the Designees agree is appropriate in any case). In the event that a dispute is not resolved by the Designees within such time period, the Designees shall refer the dispute for discussion and resolution to the Chief Executive Officer of each party or any other appropriate senior officer of each party, who shall have an additional thirty (30) calendar days to meet and confer concerning a resolution.
Thereafter, any unresolved dispute, disagreement or claim arising out of these TOS or its breach, termination or invalidity, including jurisdiction of the arbitration panel, shall be finally settled and determined by arbitration administered by the American Arbitration Association (the "AAA") under its then-current International Arbitration Rules (the "AAA Rules"). The written award of the arbitrators shall be final and binding upon the parties, and judgment on or enforcement of the award may be sought, had or entered in any court having jurisdiction. Each party shall be entitled to appoint one arbitrator, and after consultation with the parties, the AAA shall appoint a third arbitrator. The seat of arbitration shall be San Francisco, California, U.S.A. The arbitrators may hold hearings at such other locations, as the arbitrators shall determine, after consultation with the parties. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Nothing in these TOS prohibits any party from seeking interim relief in any court of competent jurisdiction; provided, however, that neither the filing of an application for nor the granting of interim relief shall be deemed a waiver of the obligation of the party to have the dispute determined exclusively by arbitration. The provisions of this Section 10.2 shall survive the termination of these TOS.
11.1. Miscellaneous Terms
These TOS shall be governed by and construed in accordance with the laws of the State of California, U.S.A. without regard to its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these TOS.
These TOS constitute the entire understanding and agreement of the parties with respect to the subject matter and supersede all prior and contemporaneous agreements or understandings, whether written or oral, between the parties with respect to the Service. IAS and Motor Carrier are independent contractors and these TOS will not establish any relationship of partnership, joint venture or agency between IAS and Motor Carrier. Neither party has the power or authority to bind the other. No provisions of these TOS are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party, except IAS.
The unenforceability of any provision of these TOS shall not impair the enforceability of any other part of these TOS. If any provision of these TOS shall be deemed invalid or unenforceable, in whole or in part, these TOS shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the parties. The failure of a party at any time to require performance of any obligations of the other party shall not be deemed a waiver and shall not affect its right to enforce any provision of these TOS at a subsequent time. The section titles in these TOS are for convenience only and have no legal or contractual effect.
These TOS shall be binding upon, and inure to the benefit of, the successors and assigns of the parties to these TOS. Motor Carrier is entitled to effect an assignment of these TOS to another entity within its corporate structure, but not to any other entity or party without the prior written consent of IAS. Any such assignment of these TOS without obtaining written consent shall be void and of no effect and shall permit IAS to terminate these TOS. IAS may assign these TOS without Motor Carrier’s consent to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.
Further, IAS reserves the right to charge fees for the Service and modify such fees, from time to time.
Notwithstanding anything to the contrary in these TOS, Motor Carrier may terminate these TOS without further liability within thirty (30) days of the date such fees are charged or modified by IAS.
Motor Carrier’s and Users’ permitted use of the Service, or any software or hardware provided with it, is limited solely to the uses set forth in these TOS and shall comply with all applicable laws and regulations. These TOS are expressly made subject to all laws, regulations, orders or other restrictions on the export from the United States of software, hardware or technical information, which may be imposed from time to time by the government of the United States.
In any action or arbitration to enforce or interpret any part of these TOS, the prevailing party shall be entitled to recover, as an element of the costs of suit and not as damages, reasonable attorneys’ fees to be fixed by the court or arbitrators (including without limitation, costs, expenses and fees on any appeal).
Any notice, demand, or request with respect to these TOS shall be in writing and shall be effective on the date received (unless the notice specifies a later date) only if it is sent by a courier service that confirms delivery in writing, to the parties' respective addresses on record. Any party may change its address for such communications by giving notice to the other party in conformity with this Section. The parties shall immediately notify each other of any legal notices served on them, which might affect the other, and shall promptly forward the original or a copy of such notice to the other.
The Internet and technology are rapidly changing. Accordingly, IAS may need to modify these TOS from time to time. We will post on [Insert URL] a copy of the modified TOS, which will become effective 30 days after the modified TOS are first posted on this site. Motor Carrier should regularly review this site to ensure that Motor Carrier is informed of any changes and be sure that the email address on record is current. We will also email you to the email address then on record a link to a copy of the modified TOS 30 days before the modified TOS will go in effect. If any modification is unacceptable to Motor Carrier, Motor Carrier shall cease using the Service. Motor Carrier’s continued access to the Service will indicate Motor Carrier has accepted the change.
IAS may identify Motor Carrier as a client in its promotional and presentation materials, advertising, on its website and at trade events. Motor Carrier agrees to cooperate with IAS in the production of a press release in connection with use of the Service and to develop a more focused case study for marketing purposes to be approved by Motor Carrier before any public dissemination.
11.3. Force Majeure
Except for payment of fees, neither party shall be deemed to be in default under these TOS for any delays or failures in its performance to the extent such failures or delays result from acts beyond either party’s reasonable control, including, but not limited to, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, strikes, walkouts, riots, civil disorders, rebellions, quarantines, epidemics, strikes or shortages of utilities or materials, embargoes or other similar governmental action.
11.4. Due Authorization
Each party represents and warrants to the other party that the individual agreeing to these TOS on behalf of such party is duly authorized to agree to these TOS on behalf of such party and to bind such party hereby.
Last revised: June 18, 2012
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