License Agreement and Terms and Conditions of Service
This License Agreement and Terms and Conditions of Service (“Agreement”) is between Konexial, Inc., the Licensor (“Konexial”, “Licensor”, “We”, “Us”, or “Our”), and you the Licensee (“Licensee” or “You”). Please read this Agreement carefully because the terms, conditions, agreements and understandings set forth herein govern Your use of Our System (as defined below). By purchasing a subscription for Our System or otherwise accessing any portion thereof, You agree to be bound by this Agreement. Please contact us with any questions at email@example.com.
1. Description of Service
1.1. The “System” means Konexial’s My20 mobile device application for iOS or Android (“App”), Our GoLoad software service (“Software”), the use of the website located at Konexial.com (the “Site”), other Subscription Services (as defined in Section 8 of this Agreement), access to and the use of Our Content (as defined below), and one or more Electronic Logging Devices (ELDs) leased to you by Konexial as a party of the System, together with cables, display devices, and accessories for such ELDs (“Hardware”). Our System does not include Your Data (as defined below) or any software application or program that is provided by You or a third party, which You use in connection with the System, whether or not Konexial designates them as official integrations (each a “Non-Konexial Product”). The services delivered to You via the System may sometimes be collectively referred to herein as the “Services”. Any modifications, updates, customizations and features added to the System by Konexial are also subject to this Agreement. As between You and Konexial, all rights, title and interest in and to the System and any product, service, software, application or any component thereof (including all intellectual property rights) will remain with and belong exclusively to Konexial and its licensors (as applicable), and such right title and interest retained by Konexial shall include, without limitation, the rights to any text, graphics, images, music, software, audio, video, documents, works of authorship of any kind, de-identified and aggregated data collected by the System and the Services, and information or other materials that are posted, generated, provided or otherwise made available by Us through the System and the Services (“Our Content”).
2. Agreement to Terms
3. Your Access, Use of the System
3.1. Konexial hereby grants, subject to Your payment of any applicable license and/or subscription fees, a limited, personal, non-sublicensable, non-exclusive and revocable license, and You hereby accept that license, to access the Software, Site, and App (the “Konexial Service Platforms”). As additional Subscription Services are included with a purchase of a subscription for the System, additional terms and conditions related to those Subscription Services are set forth in Section 8 of this Agreement. In addition, a subscription to the System includes a lease of certain Hardware from the Company, and additional terms and conditions related to any Hardware you have leased as part of the System and Your rights and obligations with respect thereto are set forth Section 9 of this Agreement. Any rights not expressly granted herein are reserved.
3.2. You may access and use the Konexial Service Platforms only for lawful, authorized purposes related to your cargo transportation business and You shall not misuse the Konexial Service Platforms in any manner (as determined by Konexial in its sole discretion). You shall comply with any instructions, codes of conduct, policies, storage limitations, or other notices Konexial provides You or publishes in connection with the Konexial Service Platforms.
3.3. Any software (including, without limitation, the Software, the App, the Site and any software that may be integrated into or used in connection with the Hardware) or any of Our Content that may be made available by or on behalf of Konexial in connection with the System contains proprietary and confidential information that is protected by applicable federal and state laws. For purposes of any public disclosure provision under any federal, state, or local law, it is agreed that the Software is a trade secret and a proprietary commercial product and not subject to disclosure. All right, title and interest in and to the Software and all copies and duplicates thereof, and all related copyrights, trademarks, trade names, trade secrets and other intellectual property and proprietary rights and interests, are vested and remain in Konexial and Konexial’s licensors.
3.4. With respect to the App, the license to access Konexial Service Platforms granted pursuant to Section 3.1 permits You to download and install a copy of the App on a mobile device or computer that You own or control and to run such copy of the App, subject to the other terms and conditions of this Agreement. Konexial reserves all rights in and to the App not expressly granted to You under this Agreement. With respect to the Software, the license to access Konexial Service Platforms granted pursuant to Section 3.1 permits you to access the Software and the services provided thereby (i) via use of the App as an access portal and (ii) subject to establishing an Account (as defined below) with Konexial, which access to the Software is made available via one or more servers hosted by Konexial or its licensors and/or vendors.
3.5. You may use the System and the Services only if You are 18 years or older, capable of forming a binding contract with Konexial, and are not barred from using the System and/or the Services under applicable law.
3.6. You agree to create an account (“Account”) to access and use the System. You agree to provide Us with accurate, complete and up-to-date information for Your Account and You agree to update such information from time to time to keep it accurate, complete and up-to-date.
3.7. You agree that We have the authority to suspend or terminate Your Account for any reason.
3.8. You agree that You will not disclose Your Account password to anyone and You’ll notify Us immediately of any unauthorized use of Your Account. You’re responsible for all activities that occur under Your Account, whether or not You know about them. You agree to prevent any unauthorized access or use of Your Account and to terminate any unauthorized use of or access to the System under Your Account.
3.9. You may not share Your Account information with, or allow access to Your Account by, any third party. You are solely responsible for all activity that occurs under Your access credentials.
3.10. You may not sell, resell or lease the System or any component or portion thereof, or your right and license to access and use the System.
3.11. You shall promptly notify Konexial if You learn of a security breach related to the System or any component thereof.
3.12. You assume sole responsibility for Your driving and driving logs and for complying with all state and federal regulation including, but not limited to, Federal Motor Carrier Safety Administration Hours of Service of drivers.
3.13. No Modifications. You agree that only Konexial shall have the right to alter, maintain, enhance, or otherwise modify the Software, Site, App or any documentation related thereto. You further agree that you are prohibited from creating, directly or indirectly, any modifications, derivative works or improvements to the Software, Site, App or any related documentation (collectively, “Modifications”). You acknowledge and agree that Konexial shall have no obligation under any software warranty, maintenance agreement or other agreement to correct any defects, errors, bugs or other problems arising as a result of any Modification which is created in violation of this Agreement or otherwise. You will be solely responsible for any problems resulting from any such Modifications and shall defend, indemnify and hold Konexial harmless from and against any liability, loss, damages, costs or expenses (including court costs and reasonable attorney fees) incurred as a result of any such Modifications. Any Modifications made in violation of this Section 3.13 shall nonetheless be the sole and exclusive property of Konexial, regardless of the identity of the party making such Modification.
4. Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data
4.3. Your acceptance of this Agreement does not grant Us full ownership of all of Your Data. As between Konexial and You, You are granting Us the rights and licenses necessary to provide Our Services to You and any other services for which You have signed up through any of Our resellers, business partners and affiliated businesses. In order for Us to provide the Services to You, We must be able to (i) transmit, store and copy Your Data in order to display it to You and to those with whom You share it, (ii) index it so You are able to search it, (iii) make backups to prevent data loss, (iv) send Your submissions and messages through Our System, and (v) use and handle Your data in various other ways. Your acceptance of this Agreement gives Us the permission to do so and grants Us any such rights and licenses necessary to provide the Services to You, and any other services or products for which You have subscribed through any of Our resellers, business partners and affiliated businesses. The preceding sentence includes but is not limited to the following:
a. If You submit documents or send messages to any employee of a Company (as defined in Section 7.1 below) or other third parties who are also connected to that Company (“Company Users”), You are granting Us a royalty-free, perpetual, sublicensable, irrevocable and worldwide license for Us to transform, modify, reproduce, display, perform and distribute such documents and messages for Your and the Company User’s use of the System and related Services.
b. If You have agreed to share any of Your Data, or any other data we collect in connection with Your use of the System and the Services, with one of Our partners or affiliates or other third party, You grant Us the rights and licenses to share or deliver such data. This permission includes allowing Us to use third-party service providers (such as Amazon Web Services) in the operation and administration of the System and Services and the rights granted to Us are extended to these third parties to the degree necessary in order for the Services to be provided.
c. If You authorize a third party to receive Your Data, We may provide Your Data to such third party. If We have an agreement with such third party to market the System and related Services or otherwise provide services or products to You, either jointly or separately, We may rely on a representation from that third party that You have authorized such third party to receive Your Data.
4.4. You are solely responsible for Your conduct (including by and between all App users), the content of Your Data, and all communications with others while using the System. You represent and warrant that You own all Your Data or You have all rights that are necessary to grant Us the license rights in Your Data under this Agreement. You also represent and warrant that neither Your Data, nor Your use and provision of Your Data, nor any use of Your Data by Konexial on or through the System and related Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information You and Your users may be able to access using the System. Should You be in violation of this Agreement, We have the right to remove any of Your Data causing such violation.
4.5. We appreciate all of Your feedback and suggestions, and You can submit feedback by emailing us at contact@Konexial.com. You agree that by submitting suggestions or other feedback regarding Our System, Our Services or Konexial, You are conveying all right, title and interest in such suggestions or feedback to Konexial, that such suggestions and feedback will therefore be solely and exclusively owned by Konexial, and that Konexial may use such feedback for any purpose without compensation to You.
4.6. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. By accepting this Agreement and using Our System, you represent and warrant to Us that you are 18 years of age or older. We do not knowingly collect or solicit personally identifiable information from children under 13; if You are a child under 13, please do not attempt to register or sign up for the System or any Services or send any personal information about Yourself to Us. If we learn We have collected personal information from a child under 13, We will delete that information as quickly as possible. If You believe that a child under 13 may have provided us personal information, please contact us at firstname.lastname@example.org.
5. Changes and Modifications to Agreement
5.1. We may modify this Agreement at any time, in our sole discretion. Any modifications will be posted on the Site or through other communications. Continued use of the System after a modification is Your acquiescence to such modification and Your agreement to be bound by the Agreement, as modified.
6. Limitations on Services and Third-Party Relationships
6.1. Konexial is not a party to any relationships or agreements between You and any third parties for the performance of any duties between the parties, and does not have control over and disclaims all liability for the quality, timing, legality, failure to provide, or any other aspect whatsoever of any professional duties performed by You or other users of the System. Konexial acts only as an interface to facilitate — not to direct or control — communications between users of Konexial’s System.
7. Warnings and Awareness About Connections Between Drivers and Companies
7.1. The System enables a commercial motor vehicle driver (“Driver”) to connect directly with a motor carrier (“Company”), allowing Drivers to send messages and automatically share their driving logs, documents, location information and other data (“Driver Data”) with the Company. When Drivers connect with a Company through the System, the Company’s employees and other third parties who are also connected to that Company (“Company Users”) may access Driver Data for all Drivers who are connected to that same Company.
7.2. If a Driver connects with a Company, the Driver should be aware that his or her Driver Data will be automatically shared with that Company and its Company Users and that Company and its Company Users will be able to send messages to that Driver. Please consider carefully the parties with whom You choose to connect and what You choose to share. Konexial’s role in this process is solely to provide the System that enables these Services, and Konexial expressly disclaims any liability associated with the timing or content of any such messages or other information sharing.
8. Subscription Services
The following provisions of this Section 8 apply to You only if You have ordered Subscription Services and have a direct billing relationship with Konexial for such Subscription Services. If You have licensed any Konexial Hardware from us or a reseller, please refer to the Section 9 for further terms related to Your Konexial ELD.
8.1. Description of the Subscription Services. Konexial offers Services, on a subscription basis, whereby Driver uses the System to provide a Company certain information necessary to allow a Driver to transport cargo for the Company (“Subscription Services”). In order to purchase the Subscription Services, Konexial requires You to submit and agree to the terms of an order form (which may be online and which may be provided by third party sales agent), or such other form of communication for ordering the Subscription Services from Konexial as Konexial shall in its sole discretion require (an “Order Request”). All orders for the Subscription Service, regardless of the form or source of the applicable Order Request, are subject to Konexial’s acceptance. Konexial reserves the right to refuse any order for the Subscription Services, and receipt of an Order Request is not considered acceptance of such order. To the extent You use any of Our Subscription Services, You will be required, either upon your initial order of such Subscription Services (if ordered directly from Konexial) or after the expiration of an initial paid trial period (if ordered through a third party sales agent), to provide Konexial accurate information regarding Your credit card or other payment method authorized by Konexial (a “Payment Method”). You will promptly update Your Account information with any changes in Your Payment Method. If You do not update Your Account with changes in Your Payment Method, we may suspend or terminate Your subscription to the Subscription Services. If any of the Services which You are currently using are free, we will notify You before any such Services become paid Services and if You wish to continue using such Services, You must pay all applicable fees for such Services.
8.2.1. Pricing and Payments. Upon acceptance of Your order by Konexial, You agree to pay Konexial (or the third party sales agent, as applicable) in accordance with the terms set forth on Your Order Request and the terms of this Agreement. In addition, once you have provided Konexial with Your Payment Method, whether as a condition to the commencement or the continuation of the Subscription Services, You authorize Konexial to bill Your Payment Method in advance on a periodic basis in accordance with such terms. Please be aware that the pricing for the Subscription Services will be governed by the terms in Your Order Request, upon acceptance by Konexial and not by any other pricing information that Konexial may publish, whether at the Site or elsewhere.
8.2.2. Billing Arrangement. We use a third-party payment processor (the “Payment Processor”) to bill You through a payment account linked to Your Account on the Services (Your “Billing Account”) for use of the Subscription Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to use Subscription Services, You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and You authorize Us, through the Payment Processor, to bill Your Payment Method. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
8.2.3. Payment Method. The terms of Your payment will be based on Your Payment Method and may be determined by agreements between You and the financial institution, credit card issuer or other provider of Your chosen Payment Method. If We, through the Payment Processor, do not receive payment from You, You agree to pay all amounts due on Your Billing Account upon demand.
8.2.4. Recurring Billing. Some of the Subscription Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by You. By choosing a recurring payment plan, You acknowledge that such Subscription Services have an initial and recurring payment feature and You accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., QUARTERLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, EMAIL email@example.com.
8.2.5. Change in Amount Authorized. If the amount to be charged to Your Billing Account varies from the amount You preauthorized (other than due to the imposition or change in the amount of state sales taxes), You have the right to receive, and We shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement You have with Your payment provider will govern Your use of Your Payment Method. You agree that We may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
8.2.6. Billing Disputes. If You dispute any charges You must let Konexial know within thirty (30) days after the date that Konexial invoices You. All amounts paid are non-refundable and We reserve the right to change our prices in the future. Konexial may choose to bill You through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
8.2.7. Taxes. You are responsible to pay any and all taxes that We may be required to collect or pay based on providing the System and the Services other than taxes based on our net income.
8.2.8. Discontinuation of Services. If You choose to discontinue, cancel or terminate any Subscription Services for which You have agreed to in an Order Request before the end of the term agreed to in such Order Request, Konexial shall have the right to immediately charge the Payment Method associated with Your Account for the remaining balance due with respect to the agreed upon Term of Your Subscription Services, all as further specified in Your Order Request or in any agreements to extend the initial term of Your Order Request.
8.2.9. AUTO-RENEWAL FOR SUBSCRIPTION SERVICES. Unless You opt out of auto-renewal, which can be done by emailing us at firstname.lastname@example.org or by calling us at 1-865-888-6920 ext. 703, any Subscription Services You have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If You terminate a Subscription Service, You may use Your subscription until the end of Your then-current term; Your subscription will not be renewed after Your then-current term expires. However, You won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
8.2.10. Reaffirmation of Authorization. Your non-termination or continued use of any Subscription Service reaffirms that We are authorized to charge Your Payment Method for that Subscription Service. We may submit those charges for payment and You will be responsible for such charges. This does not waive Our right to seek payment directly from You. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when You initially selected to use the Subscription Service.
9.1. Ordering. By ordering the System and related Subscription Services, you are also leasing Hardware from Konexial to be used by You while your subscription for such Subscription Services is paid up and current. Such Hardware is leased and not purchased, and the payment terms for any Hardware leased as a part of the Subscription Services are included as part of the payment terms for the Subscription Services set forth in Section 8 above, subject to the additional payment terms and obligations set forth in Section 9.4 below.
9.2. Delivery. Please refer to Your Order Request and further communications with Konexial regarding the estimated time of delivery of the Hardware. Konexial is not liable for any delayed or late delivery of the Hardware.
9.3. Installation. You are solely responsible for installing the Hardware in accordance with Konexial’s written instructions. You acknowledge that You are aware that in order to install the Hardware You may choose to modify Your vehicle, and You agree that Konexial is not liable for any cost, expense or damages arising from the installation of the Hardware. Konexial is not responsible for any damage arising from installation of the Hardware that does not follow Konexial’s written instructions.
9.4. Terms Related to Leased Hardware.
(a) Ownership of the Hardware. You are leasing and not purchasing the Hardware from Konexial. Notwithstanding delivery of the Hardware to You and Your license to use the System, Konexial or its applicable licensors retain ownership of the Hardware (and any software embedded or contained therein). You hereby agree to keep any Hardware leased to you at all times free and clear from all liens and encumbrances and shall not allow any third party to use the Hardware. You further agree to give Konexial immediate notice of any attachment or other judicial process affecting any Hardware in Your possession. Konexial may, at its own expense or the expense of its licensors, affix plates or markings on the Hardware and on any operating manuals and manufacturer’s instruction indicating Konexial’s or its licensors’ interest in such Hardware.
(b) Payment. Leasing the Hardware is included as part of the Subscription Services, so the payment terms set forth in Section 8 above are included herein by reference, and lease payments for the Hardware are included as part of the overall cost of the Subscription Services set forth on your Order Request. The Order Request provides information as to the number of ELDs you are leasing and the cost associated with leasing those ELDs and ordering the associated Subscription Services.
(c) Return of Leased Hardware. At the end of the initial term specified on the Order Request or as such term is extended or renewed by further agreement between You and Konexial (“Term”), or if the Subscription Services have been terminated for any other reason (including without limitation Your failure to pay for any Subscription Services in accordance with the terms and conditions of this Agreement), You must, at Your own expense, uninstall, package and return the Hardware to Konexial within 30 days of the earlier of (i) the end of the Term or (ii) Your delivery or receipt of notice of the termination of the Subscription Services (as applicable), in reasonable condition allowing for wear and tear. Conditions outside of reasonable wear and tear include, but are not limited to damage caused as a result of flooding, opening of the casing, or clear/obvious mishandling of the Hardware. If We haven’t received the Hardware within 30 days of termination of the Subscription Services (the “Return Period”), or if the Hardware is returned in damaged condition, We will invoice or charge You $120 per unit of unreturned or damaged Hardware, so please ensure that You promptly return Your Hardware. By signing this Agreement, you expressly acknowledge and agree that you will owe, and that Konexial is entitled to collect, the aforementioned $120 charge with respect to any Hardware that is not returned prior to the expiration of the applicable Return Period or is returned in damaged condition. As used herein, a “unit” of Hardware means one (1) ELD and the associated Hardware. We reserve the right to charge these fees to the Payment Method that You have on file with Us without any prior notice. Such right does not, however, restrict in any way our authority to invoice you for such return charges or seek collection and payment of such charges via any other lawful means. In the event that We do charge such fees to You, We will provide notice via email or another authorized method of communication specified in the Order Request of such charge.
(d) Your Responsibility for the Hardware. Except for with respect to Our gross negligence or willful misconduct, You are solely responsible for the loss of, damage to, or the entire cost of any necessary service or repair of the Hardware. You have no right to sell, give away, transfer, pledge, mortgage, alter or tamper with the Hardware.
(e) Material Defects. If You report to Us, in writing, a material defect in the Hardware or the Subscription Services, we will run a diagnostic test of the Hardware and Subscription Services. If we determine that there is a material defect in the Hardware or the Subscription Services, We will send You replacement Hardware or work to resolve any other issues with the Subscription Services. Within 30 days of receipt of the replacement Hardware You must, at Your own expense, uninstall, package and return the defective Hardware to Konexial (the “Replacement Return Period”). If We haven’t received the defective Hardware within 30 days of Your receipt of the replacement Hardware, or if the Hardware is returned in damaged condition, We will invoice or charge You $120 per unit of unreturned or damaged Hardware, so please promptly attend to Your Hardware return. By signing this Agreement, you expressly acknowledge and agree that you will owe, and that Konexial is entitled to collect, the aforementioned $120 charge with respect to any Hardware that is not returned prior to the expiration of the applicable Replacement Return Period or is returned in damaged condition. We reserve the right to charge these fees to the Payment Method that You have on file with Us. Such right does not, however, restrict in any way our authority to invoice you for such return charges or seek collection and payment of such charges via any other lawful means. If We are unable to reasonably correct the defect within 15 days of Your report, We will refund You a proportionate amount of the fees paid for the Subscription Services for those parts of the Subscription Services that were inoperative from the time of the report to when the defect was resolved (“Material Defects Refund”). You agree that Your only remedy for such a defect is Your right to a Material Defects Refund as provided in this paragraph.
(f) Limitations on the Material Defects Refund. The Material Defects Refund policy in Section 9.4(e) is null and void in the event of (i) any alteration, modification or special configuration or installation or de-installation of the Hardware or the embedded software without following Konexial’s written instructions; (ii) accidents affecting the Hardware, misuse, tampering with, abuse, neglect or damage the Hardware; (iii) use of the System or related Services not in the ordinary course of Your business operations; (iv) connecting the Hardware to an improper voltage supply; (v) water, weather or physical damage; or (vi) use of the Hardware with accessories and/or devices which are not approved by Konexial.
(g) Damaged Hardware. If Hardware is damaged while in your possession during the Term, then you may return such Hardware to Konexial and Konexial will provide replacement Hardware, provided that We will invoice or charge You $120 per unit of such damaged Hardware. We reserve the right to charge these fees to the Payment Method that You have on file with Us without any prior notice. Such right does not, however, restrict in any way our authority to invoice you for such return charges or seek collection and payment of such charges via any other lawful means. In the event that We do charge such fees to You, We will provide notice via email or another authorized method of communication specified in the Order Request of such charge.
(f) Risk of Loss. As between You and Konexial, You will at all times bear the entire risk of loss, theft, destruction, or damage, whether partial or complete and whether or not insured, of all Hardware, and of any condemnation, confiscation, requisition, seizure, forfeiture, or other taking of title to or use of each article of Hardware, whether partial or complete, from any cause whatsoever, except damage from reasonable wear and tear consistent with the Hardware’s use with and location on commercial trucks and carriers (“Loss or Damage”). You will indemnify and defend Konexial and any of Konexial’s licensors, and hold Konexial and any such licensors harmless from and against any and all Loss or Damage, until the Hardware has been returned to Konexial and received by Konexial in accordance with all terms and conditions of this Agreement. No Loss or Damage shall release, impair, or otherwise affect Your obligation to pay for the Subscription Services or any other obligation You have under this Agreement.
(g) Tracking. You covenant and agree that you will advise any user of a vehicle on which you place the Hardware that the vehicle may be tracked and that You will be able to produce historical reporting on the vehicle.
9.5. Warranties and Disclaimers; Limitation of Liability
(a) Konexial hereby warrants to you that each ELD received by You shall be:
(i) in good working order;
(ii) Federal Communications Commission certified;
(iii) shall support FMCSA certification standards; and
(iv) shall be free of defect in design or manufacturing.
Your exclusive remedy for any breach of the warranties set forth in this Section 9.5(a)(i) and 9.5(a)(iv) shall be the replacement and refund provisions set forth in Section 9.4(e) and 9.4(f) above.
(b) TO THE MAXIMUM EXTENT ALLOWABLE BY LAW AND EXCEPT AS PROVIDED IN SECTION 9.5(A) HEREOF, WE MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING ANY OF THE HARDWARE, WHICH IS PROVIDED TO YOU AS IS AND WITH ALL FAULTS. ALL SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE HARDWARE. KONEXIAL IS NOT RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATING TO THE HARDWARE.
(c) Without limiting Your indemnification obligations set forth in Section 18 below, You hereby covenant and agree to indemnify and defend Konexial and its agents, employees, officers, and directors and hold them harmless from and against any and all claims, liabilities, losses, damages, and expenses, including, without limitation, all court costs and attorney and expert witness fees and costs arising from or in connection with or based on:
(i) (i) the possession, operation, or use (by whomever operated or used) of any of the Hardware, except damages arising out of or alleged to arise out of any product defect);
(ii) Federal Communications Commission certified;
(iii) (i) Your material breach of any of the terms of this Agreement; or
(iv) (i) Your gross negligence.
9.6. Other Terms and Restrictions.
(a) The Hardware connects to the battery of Your vehicle and consumes a small drain on Your vehicle’s battery, which may adversely affect Your vehicle while not in operation. Konexial is not liable for any consequences of the battery drain associated with use of the Hardware, the System or the related Services.
(b) Map data that You may use in connection with the Subscription Services is provided by one or more third parties selected by You from a limited number of map data providers designated by Konexial. You hereby acknowledge Konexial does not provide any map data in connection with the Subscription Services and that Konexial’s role with respect to such map data is limited to designating which map data providers are authorized to be used in connection with the Subscription Services. Your use of such any map data may be subject to terms and conditions established by such third party providers, who may require you to enter into license or other user agreements in order to access and utilize such map data. You hereby acknowledge and agree that Konexial makes no representations or warranties regarding the accuracy of such map data and is not liable for any claims and damages arising from Your use of such map data.
10. General Prohibitions
10.1. IT IS STRICTLY FORBIDDEN TO USE THE KONEXIAL APP WHILE DRIVING.
10.2. You further agree not to do any of the following:
10.2.1. Post, upload, publish, submit or transmit anything that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
10.2.2. Use, display, mirror or frame the System or any portion thereof, or any individual element within the System, Konexial’s name, any Konexial trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Konexial’s express written consent;
10.2.3. Access, tamper with, or use non-public areas of the System, Konexial’s computer systems, or the technical delivery systems of Konexial’s providers;
10.2.4. Attempt to probe, scan, or test the vulnerability of any Konexial system or network or breach any security or authentication measures;
10.2.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Konexial or any of Konexial’s providers or any other third party (including another user) to protect the System and the Services;
10.2.6. Attempt to access or search the System or download any Software or Our Content from the System through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Konexial or other generally available third party web browsers;
10.2.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
10.2.8. Use any meta tags or other hidden text or metadata utilizing a Konexial trademark, logo, URL or product name without Konexial’s express written consent;
10.2.9. Use the System or the Services for the benefit of any third party or in any manner not expressly permitted by this Agreement;
10.2.10. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the System to send altered, deceptive or false source-identifying information;
10.2.11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software that is a part of the System or is otherwise used to provide the Services, or otherwise attempt to access any source or object code that comprises a part of the Konexial Platform Services or is integrated into the Hardware;
10.2.12. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the System;
10.2.13. Collect or store any personally identifiable information from the System from other users of the System without their express permission;
10.2.14. Impersonate or misrepresent your affiliation with any person or entity;
10.2.15. Violate any applicable law or regulation; or
10.2.16. Encourage or enable any other individual to do any of the foregoing.
10.3. Although We are not obligated to monitor access to or use of the System or to review or edit the System or Your Data, We have the right to do so for the purpose of operating the System and providing the Services, to ensure compliance with this Agreement, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any of Our Content or Your Data, at any time and without notice, including, but not limited to, if We, at our sole discretion, consider any of Our Content or Your Data to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects the System and/or the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
12. Arbitration Agreement, Dispute Resolution and Releases
PLEASE READ THIS SECTION CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS AND YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION. Unless otherwise agreed to by both parties in writing, You and Konexial agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or relating in any way to Your use of the System or the related Services, or any use of the System or related Services by a user to whom You provide access to Your Account, or arising out of or relating to this Agreement (“Claim”) will be resolved as follows:
12.1. Informal Dispute Resolution. Except with respect to Claims listed in Section 12.6, below, You and Konexial agree to attempt to resolve any disputes informally before initiating any arbitration or other formal proceedings, and neither of Us may start an arbitration or other formal proceeding for at least 30 days after You contact us or We contact You regarding any dispute (“Informal Negotiation Period”).
12.2. Agreement to Arbitrate. If such dispute is not resolved within 30 days, You or Konexial may initiate a formal arbitration proceeding in accordance with the terms in this Section 12. Except with respect to Claims listed in Section 12.6, below, You and Konexial agree to resolve any Claims relating to or arising from the System, the Services or this Agreement through final and binding arbitration in accordance with the terms in this Section 12.
12.3. Arbitration Notice. If either You or Konexial chooses to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim (“Arbitration Notice”) to the other party. You will send Your Arbitration Notice by email to email@example.com and by U.S. mail to:
127 Dillon Court
Johnson City, TN 37615
12.4. Arbitration Procedures. Any arbitration proceedings between You and Us will be conducted under the commercial rules then in effect for the American Arbitration Association (“AAA”), except with respect to the provision of this agreement which bars class actions in Section 12.7 and any specific rules and procedures explicitly discussed in this Section 12.4. The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert and other witness and reasonable attorneys’ fees. Please see this link for the AAA’s current rules and procedures or contact the AAA at 1-800-778-7879.
12.5. Non-Appearance-Based Arbitration Option. Except with respect to the exceptions to arbitration below in Section 12.6, for Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non-appearance-based arbitration. If non-appearance-based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating arbitration. Non-appearance-based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by the parties.
12.6. Exceptions to the Agreement to Arbitrate.
12.6.1. Notwithstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either law suits solely for injunctive relief to stop unauthorized use of the System or the Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy or unauthorized use of the System or the Services.
12.7. No Class Actions. Unless You and Konexial agree otherwise, You may only resolve disputes with us on an individual basis. Class actions, class arbitrations, private attorney general actions and consolidations with other Claims are not allowed. Neither You nor Konexial may consolidate a Claim or Claims as a plaintiff or a class member in a class action, a consolidated action or a representative action.
12.8. Consent to Jurisdiction. If the agreement to arbitrate provided for in this Agreement is found not to apply to You or Your Claim, or if You or Konexial challenges any arbitration award or seeks to have an arbitration award enforced, You and Konexial agree that any judicial proceeding will be brought in the federal or state courts located in Knoxville, Tennessee. You and Konexial consent and agree to both venue and personal jurisdiction in the federal and state courts located in Knoxville, Tennessee.
12.9. Release from Third-Party Claims. Because Konexial is not party to any agreements between You and any third parties or involved in the completion of any associated professional services, in the event that You have a dispute with one or more other Drivers, Company Users or Companies or other third parties, as applicable (each, an “Other Party”), You agree to address such dispute directly with the Other Party in question and You release Konexial (and Our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
13. Links to Third Party Websites or Resources
13.1. The System may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, Your use of any third-party websites or resources.
14. Digital Millennium Copyright Act
14.1. We respect the ownership rights of artists and other content owners and creators and ask that You do too. We respond to notices that We receive regarding alleged infringement if they comply with the requirements of and process specified in the Digital Millennium Copyright Act of 1998 (“DMCA”). For an overview of the DMCA’s notice and takedown procedures for allegedly infringing material, please see . For more comprehensive provisions please see .
14.2. Upon receipt of a notice which complies with the DMCA, We will take whatever action We deem appropriate, including removing the allegedly infringing content from the System and limiting or terminating use of the System and related Services for any users who are infringing the property rights of others.
14.3. Please note that this Section is intended to inform You and copyright owners of procedures under the DMCA and to comply with Konexial’s rights and obligations under the DMCA. This Section does not constitute legal advice, and it may be advisable to contact an attorney concerning Your rights and obligations under the DMCA and any other applicable laws.
15.1. This Agreement will continue in full force and effect unless and until Your Account or this Agreement is terminated as described herein.
15.2. We may terminate Your access to and use of the System and the Services, at Our sole discretion, at any time and without notice to You. You may cancel Your Account at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of Services or Your Account, all provisions of the Terms that should, by their nature, survive termination of this Terms will survive termination. Such provisions include, but are not limited to: Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data; Disclaimers; Indemnity; Limitation of Liability; Arbitration Agreement, Dispute Resolution and Release; General Terms; and provisions related to ownership and post-termination returns of Hardware and payment obligations.
15.3. In the event that You have paid for Subscription Services, and We terminate Your Account in Our own discretion and not based on any breach or violation of this Agreement or any other agreements with Us, We will refund You a proportionate amount of the fees paid for the Subscription Services for the time from which We terminated Your Account to the end of the then-current payment period.
15.4. All accrued rights to payment shall survive termination of this Agreement.
15.5. Notwithstanding Section 15.2, please be aware that once Your Account has been terminated, We no longer have any obligation to maintain or provide Your Data, and We may delete or destroy all copies of Your Data in Our possession or control, unless legally prohibited.
16.1. THE SYSTEM AND RELATED SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KONEXIAL EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY DRIVER, COMPANY USER, COMPANY OR OTHER THIRD PARTY. We make no warranty that the System or any Services will meet Your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the System or any of the Services or anything shared by any users of the System or Services.
16.2. You are solely responsible for Your interactions with other users on the System. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the System and Services.
16.3. Neither Konexial nor its affiliates or licensors is responsible for the conduct of any user of Konexial’s System or Services. Your use of the System and related Services and Your use of Your Data in connection with the System and Services and performance of and participation in any professional services is at Your sole risk and discretion and Konexial hereby disclaims any and all liability to You or any third party relating thereto.
17. Limitation of Liability
17.1. NEITHER KONEXIAL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SYSTEM, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SYSTEM, SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KONEXIAL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
17.2. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, KONEXIAL DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY PROFESSIONAL SERVICES PERFORMED BY USERS OF OUR SYSTEM, SERVICES OR CONTENT, OR IN CONNECTION WITH THEIR USE OF THE SYSTEM, SERVICES OR CONTENT. KONEXIAL WILL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES ARISING OUT OF THE MISUSE OF YOUR USER CONTENT BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, OTHER USERS WITH WHOM YOU HAVE CONNECTED THROUGH THE SYSTEM OR ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE PERFORMANCE OF PROFESSIONAL SERVICES. IN NO EVENT WILL KONEXIAL’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SYSTEM, SERVICES OR CONTENT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) IF YOU HAVE ORDERED SUBSCRIPTION SERVICES FROM KONEXIAL, THE TOTAL AMOUNT OF FEES RECEIVED BY KONEXIAL FROM YOU FOR THE USE OF SUBSCRIPTION SERVICES DURING THE PAST SIX (6) MONTHS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KONEXIAL AND YOU.
17.3. Any cause of action related to the System, Services or this Agreement must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
18.1. You will indemnify, defend and hold harmless Konexial and Our officers, directors, employees and agents, from and against, and covenant not to sue them for any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) Your access to or use of the System, Services or Our Content; (ii) Your Data; (iii) Your performance of or participation in professional services in connection with Your use of the System, Services or Our Content; or (iv) Your violation of this Agreement. Konexial reserves the right to control and conduct the defense of any matter subject to indemnification under this Agreement. If Konexial decides to control or conduct any such defense, You agree to cooperate with Konexial’s requests in assisting Konexial’s defense of such matters.
19. General Terms
19.1. Integration. This Agreement, together with any other policies or agreements referenced herein or appended hereto, constitute the entire and exclusive understanding and agreement between Konexial and You regarding the System and the Services, and supersede and replace any and all prior oral or written understandings or agreements between Konexial and You regarding the System and the Services. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
19.2. Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without Konexial’s prior written consent. Any attempt by You to assign or transfer this Agreement, without such consent, will be null and of no effect. Konexial may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
19.3. Governing Law. This Agreement and the relationship between You and Konexial shall be governed by the laws of the State of Tennessee, without regard to any choice of law rules that may direct the applications of the laws of another jurisdiction.
19.4. Notices. Any notices or other communications provided by Konexial under this Agreement, including those regarding modifications to this Agreement, will be given by Konexial: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
19.5. Waiver and Severability. Konexial’s failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Konexial. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If any provision of this Agreement is determined to be unenforceable, it will not affect the enforceability of the rest of this Agreement.