IMPORTANT—READ BEFORE USING THE SOFTWARE AND/OR SERVICES, AND/OR ACCESSING THE SITE
Acceptance of End User License Agreement (“Agreement”)
Thank you for your interest in FleetBoss. FleetBoss (“FleetBoss,” “We,” or “Us”) is willing to license the FleetBoss software (“Software”), and allow the use of the services available on the FleetBoss Web site located at http://www.FleetBoss.com (the “Site”) and described more fully herein (collectively, the “Services”), only to those that accept all the terms and conditions of this Agreement (“you” or “your”). By clicking on “OK” to this Agreement (and/or by installing, copying, downloading, accessing, and/or otherwise using the Software and/or Services), you (both as an individual and an authorized representative of a legal entity) are indicating that you agree to be bound by all of the terms and conditions of this Agreement. If you do not agree to be bound by all the terms and conditions of this Agreement: (1) do not install, copy, download, access, or otherwise use the Software and/or Services; and (2) immediately return any unused hardware devices purchased to use in conjunction with the Software and/or Services (the “Hardware”) to your original place of purchase in its original packaging for a full refund within seven (7) days of the purchase date (as evidenced on the original proof of purchase). If: (a) you do not return the Hardware to your original place of purchase within seven (7) days of the purchase date, or (b) the Hardware has been used or is not in its original packaging, or (c) you do not have the original proof of purchase, you will not be entitled to a refund for any Hardware. All Hardware returns are subject to a 15% restocking fee.
FleetBoss reserves the right, in its sole discretion, to update or modify this Agreement at any time. Your continued use of the Site, Software, and/or Services following the posting of any changes to this Agreement constitutes acceptance of those changes. Please review the most current version of this Agreement at any time on the home page of the Site or by clicking on http://www.FleetBoss.com/eula. A copy of this Agreement may be downloaded, stored, or printed for your convenience.
Registration. In order to access, install, and use the Software and/or Services, you may be asked to provide FleetBoss with true, accurate, current, and complete registration information, and update such information as necessary. Should FleetBoss have reasonable grounds to suspect that your information is inaccurate, incomplete, or untrue, it shall have the right to immediately suspend or terminate your right to use the Software, Site, and/or Services without notice to you.
Software License. FleetBoss hereby grants only to you a non-transferable, non-exclusive right and license to use the Software and Services solely in conjunction with the Hardware. You receive no title or ownership rights to such Software and/or the Services. Except for the license granted in this Section, all right, title, and interest in the Software and the Services shall remain the exclusive property of FleetBoss or its licensors. This Agreement does not give you any right to reproduce the Software or any related documentation, and you agree that you shall not decompile, disassemble, compile, or reverse engineer the Software and/or Services, or otherwise attempt to gain access to the source code of the Software and/or Services.
Fees and Payment. You agree to pay FleetBoss the fees set forth at http://www.FleetBoss.com. for the use of the Services and the Software (the “Services Fees”). FleetBoss reserves the right to increase its Services Fees at any time upon posting a revised price list at http://www.FleetBoss.com . Such increase in Services Fees will be automatically billed to your credit card. Your continued use of the Software and/or Services following the posting of any changes to the Services Fees constitutes acceptance of those changes. Please review the most current version of the Services Fees at any time by clicking on http://www.FleetBoss.com. All Services Fees shall be billed thirty (30) days in advance to the credit card provided by you to FleetBoss. All Services Fees not paid when due shall be subject to late charges equal to the lesser of: (i) one and one-half percent (1.5%) per month of the overdue amount, or (ii) the maximum amount permitted under applicable law. FleetBoss may immediately suspend or terminate (in its sole discretion) all Software and Services without notice in the event you fail to pay any Services Fees when due.
Term and Termination. This Agreement shall be effective as of the date of your clicking on “OK” to this Agreement (and/or your installation, copying, downloading, accessing, and/or otherwise using the Software and/or Services), and shall continue in effect for a period of thirty (30) days thereafter unless earlier terminated as provided herein. This Agreement shall automatically renew for successive periods of thirty (30) days unless terminated by either party thirty (30) days prior to the end of the then current thirty (30) day term. FleetBoss may immediately suspend or terminate the Software and/or the Services at any time without notice in order to: (i) prevent damages to, or degradation of, FleetBoss’s Internet or systems network integrity which may be caused by you; (ii) comply with any law, regulation, court order, or governmental request; (iii) address a violation of this Agreement; or (iv) otherwise protect FleetBoss from potential liability. FleetBoss reserves the right to take any and all additional actions it may deem appropriate with respect to violations of this Agreement including, but not limited to, taking action to recover from the offenders the costs and expenses of identifying offenders and excluding them from the Software and/or Services, and levying cancellation charges to cover FleetBoss’s expenses in the event of disconnection of dedicated access. Upon termination or expiration of this Agreement for any reason, your access to, and use of, the Site, Software, and Services will immediately terminate.
FleetBoss hereby warrants to you, for a period of thirty (30) days from the date of purchase of any piece of Hardware (the “Hardware Warranty Period”), that the Hardware will be free from defects in materials and workmanship, and shall operate in accordance with the manufacturer’s specifications. FleetBoss may use factory reconditioned parts and/or products as replacements under this warranty.
THE LIMITED WARRANTY SET FORTH IN SECTION 1 ABOVE, IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS BY FLEETBOSS, WHETHER EXPRESS OR IMPLIED, by operation of law, statute or otherwise. WITHOUT LIMITING THE FOREGOING, FleetBoss disclaims any IMPLIED WARRANTIES or conditions OF MERCHANTABILITY, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE. FleetBoss does not warrant that the HARDWARE, SOFTWARE, SITE, OR SERVICES will operate in combinations other than as specified in the applicable manufacturer’s specifications, or that the operation of the HARDWARE, SOFTWARE, SITE, OR SERVICES will be uninterrupted or error free. FLEETBOSS DOES NOT MAKE ANY ASSURANCE OF SUCCESSFUL DATA TRANSMISSION OR ANY WARRANTY THAT THE INFORMATION, DATA, OR MATERIAL ACCESSIBLE VIA THE HARDWARE, SOFTWARE, SITE, OR SERVICES IS ACCURATE OR FREE OF VIRUSES OR HARMFUL CODE.
For any breach of the limited warranty as set forth in Section 1 above, your sole and exclusive remedy, and FleetBoss’ entire liability, shall be, in FleetBoss’ sole option, the repair and/or replacement of the defective Hardware, or if FleetBoss is unable to repair and/or replace the defective Hardware, you shall be entitled to recover the fees paid to FleetBoss for the applicable Hardware; provided, however, FleetBoss is notified of such defect in writing during the Hardware Warranty Period, and you fully describe the scope and nature of the defect so that the appropriate repair may be rendered.
The limited warranty set forth in Section 1 above does not apply to normal wear and tear, and does not cover repair or replacement of Hardware, Software, and/or Services damaged by tampering, misuse, accident, abuse, neglect, inadequate installation, misapplication, alteration of any kind, disaster, or defects due to repairs or modifications made by anyone other than FleetBoss or its authorized service representative. In addition, this limited warranty does not apply to physical damage of any nature whatsoever to the Hardware. The Hardware does not contain any end-user serviceable parts, therefore any opening or attempted opening of the Hardware shall constitute a breach of this Agreement by you.
Except for the limited warranty set forth in Section 1 above, you will indemnify, defend, and hold FleetBoss and FleetBoss’ suppliers/licensors harmless against any and all liabilities, losses, damages, judgments, claims, causes of action, and costs (including attorneys fees and disbursements) which FleetBoss and FleetBoss’s suppliers/licensors may hereafter incur, suffer, or be required to pay, defend, settle, or satisfy as a result of your or any other third parties use of the Hardware, Software, and/or Services. To qualify for such defense and payment, FleetBoss must: (i) give you prompt written notice of a potential third party claim; and (ii) allow you to control, and fully cooperate with you in, the defense and all related negotiations.
The Hardware, Software, Site, and/or Services (and any modifications, alterations, additions or changes to the Hardware, Software, Site, and/or Services) are not fault tolerant and are not designed, manufactured, or intended for use in life support, emergency, mission critical, or other ultra-hazardous activities (“High Risk Activities”). FleetBoss specifically disclaims any express or implied warranty of fitness for such High Risk Activities. You represent and warrant that you will not use, or permit to be used, the Hardware, Software, Site, and/or Services for such High Risk Activities, and you agree to fully indemnify and hold harmless FleetBoss for any damages or other losses resulting from such use.
Limitation of Liability.
FLEETBOSS’ liability in connection with this agreement, the HARDWARE, SOFTWARE, SITE, and the SERVICES shall be limited to direct damages. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NONPERFORMANCE HEREUNDER BY FLEETBOSS SHALL BE EXCUSED IF CAUSED BY AN ACT OR OMISSION OF A THIRD PARTY SERVICE PROVIDER, EQUIPMENT/INTERNET FAILURE, ACTS OF GOD, STRIKES, EQUIPMENT OR FACILITY SHORTAGE, OR OTHER CAUSES BEYOND FLEETBOSS’S CONTROL. IN NO EVENT SHALL THE TOTAL LIABILITY OF FLEETBOSS AND FLEETBOSS’ SUPPLIERS/LICENSORS (WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) COLLECTIVELY EXCEED THE AMOUNTS PAID BY YOU FOR THE AFFECTED HARDWARE, SOFTWARE, SITE, AND/OR SERVICES. IN NO EVENT WILL FLEETBOSS OR FLEETBOSS’ SUPPLIERS/LICENSORS BE LIABLE FOR LOST REVENUES, LOST PROFITS, LOST DATA, OR OTHER SPECIAL, INDIRECT, DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER COMMERCIAL LOSS WHICH YOU MAY INCUR OR EXPERIENCE IN CONNECTION WITH: (A) THIS AGREEMENT, (B) ANY INABILITY TO USE THE HARDWARE, SOFTWARE, SITE, AND/OR SERVICES, (C) ANY INABILITY TO ACCESS DATA, OR (D) ANY INACCURACY OF DATA, EVEN IF FLEETBOSS, FLEETBOSS’S SUPPLIERS/LICENSORS, OR SUCH OTHER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Subject to other limitations provided herein, you acknowledge that: (a) the Hardware, Software, Site, and/or Services are only available within the United States; (b) the Hardware, Software, Site, and/or Services are only available when the Hardware is within operating range of an authorized cellular provider; (c) the Hardware, Software, Site, and/or Services are subject to cellular transmission limitations caused by atmospheric, topographical, geographical, or other conditions; (d) the Hardware, Software, Site, and/or Services are dependent on, and limited by, the electrical system, design, and architecture of the Hardware, including charges to equipment, battery life, and battery backup; (e) the Hardware, Software, Site, and/or Services may be affected by equipment limitations of individual cellular carriers and by cellular carrier PIN requirements, as well as inter-carrier roaming and other agreements; (f) with respect to global positioning capabilities, the Hardware, Software, Site, and/or Services may not be available if satellite signals are obstructed or otherwise unavailable; (g) with respect to Internet based services, the Hardware, Software, Site, and/or Services are dependant upon Internet and other telecommunications connectivity; (h) data collected by the Hardware, Software, Site, and/or Services while out of coverage or without calling connectivity may not be stored; (i) data collected by the Hardware, Software, Site, and/or Services is not provided in real time and delays in receipt of data are normal; (j) data will be stored on the FleetBoss server for thirty (30) days, after thirty (30) days the data will be archived and you will be charged for any data retrieval; (k) Hardware antennae should have an unobstructed view of the sky; (l) the Hardware, Software, Site, and/or Services may not operate in enclosed spaces, in buildings, between tall buildings, underground, or in canyons; (m) although portions of the Hardware, Software, Site, and/or Services are encrypted, the Hardware, Software, Site, and/or Services are capable of being intercepted without knowledge of, or permission from, FleetBoss by third parties; (n) FleetBoss is not responsible for the terms, conditions, or obligations arising from the agreements between you and any cellular network or airtime provider in connection with the Hardware, Software, Site, and/or Services; (o) you may not be able to cancel agreements between you and your cellular network or airtime provider upon commercially reasonable terms or at all; (p) FleetBoss assumes no responsibility for improper storage of data or information or delivery of messages; (q) you assume the entire risk in downloading or otherwise accessing any data, information, files, or other materials obtained from the Site, even if you have paid for or otherwise been provided virus protection services from FleetBoss; and/or (r) FleetBoss retains the rights to anonymous summary data analysis.
Coverage and Data Transmission. The Hardware, Software, Site, and/or Services are dependent on the coverage and calling areas of cellular networks owned and operated by third parties. Coverage and calling areas are approximate and do not cover significant portions of North America. Actual coverage and operation of the Hardware, Software, Site, and/or Services depend on: system availability and capacity; system and equipment upgrades, repairs, maintenance, modifications, and relocation; your equipment, terrain, signal strength, structural conditions, weather, and atmospheric conditions; governmental regulations; suspected fraudulent activities; acts of God; and other conditions beyond FleetBoss’s reasonable control. FleetBoss will not be responsible for limits in coverage or performance degradation due to any such conditions. You acknowledge that coverage and calling areas may be interrupted, halted, or curtailed (or the quality of the transmission may be diminished) at any time. The Hardware, Software, Site, and/or Services are dependent upon the availability of the Internet, which is owned and operated by and accessed through third parties.
Accuracy and Integrity of Information. Although FleetBoss attempts to ensure the integrity and accurateness of the Site, it makes no guarantees whatsoever as to the correctness or accuracy of the Site. It is possible that the Site could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform FleetBoss so that it can be corrected. Information contained on the Site may be changed or updated without notice.
Links or Pointers to Other Sites. FleetBoss makes no representations whatsoever about any other Web site that you may access through this Site. When you access a non-FleetBoss site, please understand that it is independent from FleetBoss, and that FleetBoss has no control over the content on that Web site. In addition, a hyperlink to a non-FleetBoss Web site does not mean that FleetBoss endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.
Trademarks. “FleetBoss,” “FleetBossGPS,” and any other trademarks, logos, and service marks adopted or used by FleetBoss to identify the Site, Hardware, Software, and/or Services belong to FleetBoss (or the applicable third party licensor). You will have no rights in such marks. You agree that you will not, at any time during or after the term of this Agreement, assert any claim or interest in, or to anything which may adversely affect the validity or enforceability of, any FleetBoss (or applicable third party) trademark.
Force Majeure. Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of FleetBoss shall be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond the reasonable control of FleetBoss, including, without limitation: failure of a GSM/GPRS, cellular network, telecommunications services, or the Internet; strikes, lockouts or other labor disputes; riots; civil disturbances; actions or inactions of governmental authorities or suppliers; epidemics; war; embargoes; severe weather; fire; earthquakes; acts of God or the public enemy; nuclear disasters; terrorist activities; or default of a common carrier.
Technical Data. You shall not, without FleetBoss’s prior written consent, use, duplicate, or disclose any technical data, or any information on the construction of the Hardware, Software, Site, and/or Services delivered or disclosed by FleetBoss to you for any purposes other than for the installation, operation, or maintenance of the Hardware, Software, Site, and/or Services.
Venue and Jurisdiction. This Agreement is entered into in the State of Florida, and shall be governed by and construed in accordance with the laws of the State of Florida, exclusive of its choice of law rules. Each party to this Agreement submits to the exclusive jurisdiction of the state and federal courts sitting in the County of Orange in the State of Florida, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys fees. The rights and obligations of the parties hereunder shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
Survival. The expiration or termination of this Agreement for any reason will not release either party from any liabilities or obligations set forth herein or therein which: (a) the parties have expressly agreed will survive any such expiration or termination, or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination.
Notices. All notices, service disputes, and/or warranty claims required pursuant to this Agreement, or any other issues by you based upon the Hardware, Software, Site, Services, and/or this Agreement, shall be made in writing directly to FleetBoss at 241 Obrien Rd., Fern Park, FL 32730.
Headings. The headings used in this Agreement are for convenience only and no meaning shall be ascribed to such headings.
Exports. You will not export the Hardware, Software, and/or Services, directly or indirectly, from the United States of America.
Assignment. FleetBoss may assign (in whole or in part) its rights or duties under this Agreement without prior notice to you, and upon such assignment, FleetBoss shall be released from all liability hereunder. The provisions of this Agreement are for the benefit of the parties hereto and not for any other entity. The delegation or assignment by you of any or all of your duties or rights hereunder with without FleetBoss’s prior written consent shall terminate this Agreement, and FleetBoss shall be entitled to immediately terminate your use of the Hardware, Software, Site, and/or Services.
Entire Agreement. This Agreement between you and FleetBoss in connection with the Hardware, Software, Site, and/or Services (or parts thereof) constitutes the entire agreement between FleetBoss and you, and supersedes all previous communications, representations, and agreements, whether oral or written, between the you and FleetBoss with respect to the subject matter hereof. The failure by FleetBoss to enforce at any time any of the provisions in this Agreement will in no way be construed as a waiver of such provisions.