End-User License Agreement
THIS END-USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (the LICENSEE), AND TRANS PLUS SYSTEMS CORP (TRANS PLUS). YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY SIGNING THE WRITTEN NOTICE OF ACCEPTANCE. The following are the terms and conditions under which TRANS PLUS agrees to grant to the LICENSEE a license to use the PROGRAM.
The following definitions shall apply to this Agreement: “PROGRAM” means the software package and related modules licensed to the LICENSEE. This EULA applies to any subsequent updates, enhancements, add-on components and modules of the PROGRAM that TRANS PLUS may provide to the LICENSEE or make available to the LICENSEE in the future; unless they are accompanied by separate terms. “Install” means placing the PROGRAM on a computer’s hard disk, CD-ROM or other secondary storage device. “Hardware” means the LICENSEE’s own hardware on which the PROGRAM operates. “Derivative Works” means a work that is based upon one or more pre-existing works, such as a revision, modification, translation, abridgment, condensation, expansion or any other form in which such a pre-existing work may be recast, transformed or adapted, and that, if prepared without authorization by the owner of the pre-existing work, would constitute copyright infringement. “Use” means (i) executing or loading the PROGRAM into computer RAM or other primary memory, and (ii) copying the PROGRAM for archival or emergency restart purposes.
2. SOFTWARE LICENSE
TRANS PLUS hereby grants to the LICENSEE a personal, non-exclusive and non-transferrable right and license solely to use the PROGRAM subject to the terms and conditions hereinafter set forth. This license is effective when executed by both parties and the license granted to the PROGRAM remains in force until terminated by either party as provided herein. TRANS PLUS may terminate this Agreement and discontinue this license if the LICENSEE fails to comply with any of the terms, conditions, and restrictions set forth in this Agreement.
3. LICENSEE’S RIGHTS AND OBLIGATIONS
This Agreement authorizes the LICENSEE to: A. Make a single working copy of the PROGRAM B. Install the PROGRAM and related databases on as many servers and\or server instances as deemed necessary to fulfil business process requirements. The number of users accessing all combined servers and/or server instances cannot exceed the maximum number of concurrent sessions (herein User Licenses) for which the LICENSEE has paid TRANS PLUS the required license fee. Where applicable, the total number of active trucks in all combined servers and/or server instances also cannot exceed the maximum number of Vehicle Licenses for which the LICENSEE has paid TRANS PLUS the required license fee. Canada copyright laws and international treaties protect the PROGRAM and the Documentation. The LICENSEE may not: A. Copy B. Transfer C. Modify or adapt the PROGRAM or merge it into another program or D. Otherwise use the PROGRAM, or any portion thereof, without TRANS PLUS’s prior written consent. E. Reverse engineer, disassemble, decompile or make any attempt to discover the source code of the PROGRAM F. Sublicense, rent, lease or lend any portion of the PROGRAM or Documentation.
4. LIMITED WARRANTY
TRANS PLUS warrants any supplied media to be free of defects in materials and workmanship under normal use for 90 days after LICENSEE acquires the said media. During this 90-day period, LICENSEE may return a defective media to TRANS PLUS and it will be replaced without charge unless it has been damaged by accident or misuse. This is the exclusive remedy of the LICENSEE and the entire liability of TRANS PLUS in the event of defect in the media. Except for any return as elected by TRANS PLUS, the LICENSEE is not entitled to any damages, including but not limited to consequential damages, if the PROGRAM does not meet TRANS PLUS limited warranty, and, to the maximum extent allowed by applicable law.
5. LIMITED REMEDY
During the 90 day period the LICENSEE may return defective media to TRANS PLUS and it will be replaced without charge unless it has been damaged by accident or misuse. This is the exclusive remedy of the LICENSEE and the entire liability of TRANS PLUS in the event of defects in the media. TRANS PLUS DISTRIBUTES THE PROGRAM AS IS AND WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT WITH RESPECT TO THE MEDIA ON WHICH IT IS STORED AS PROVIDED IN THE PRECEEDING PARAGRAPH.
6. DISCLAIMER OF PROGRAM WARRANTIES
The limited warranty that appears above is the only express warranty made to the LICENSEE and states the sole and exclusive remedies for TRANS PLUS. TRANS PLUS distributes the PROGRAM as is, with all faults and expressly disclaim all other warranties, conditions, representations or terms, either expressed or implied, whether by statute, common law, custom, usage or otherwise including but not limited to the implied warranties of merchantability and fitness for a particular purpose. TRANS PLUS expressly disclaims any non-infringement of third party rights. TRANS PLUS does not warrant that the functions contained in the PROGRAM will meet with LICENSEE’s requirements or that the operation of the PROGRAM will be uninterrupted or error free. TRANS PLUS does not charge a fee for text messaging service. While we do not charge for this service, we are not responsible for any charges from a person's service provider that may result from our providing this service. It is LICENSEE’s responsibility to get approval from the recipient prior to enabling this service. LICENSEE acknowledges that text messages are distributed via third-party mobile network providers and therefore TRANS PLUS cannot control certain factors relating to message delivery. LICENSEE acknowledges that, depending on the recipient's mobile provider service, it may not be possible to transmit the text message to the recipient successfully. Wireless carriers are not liable for delayed or undelivered messages. The use of a cellular device for phone calls or text messages while driving is dangerous and, in most jurisdictions, illegal. It is advisable for LICENSEE to notify recipients that they should refrain from texting or otherwise using a cellular device while operating a motor vehicle. Exclusion of incidental, consequential and certain other damages. To the maximum extent permitted by applicable law, in no event shall TRANS PLUS be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the PROGRAM. TRANS PLUS will not be held liable in the event of fault, tort (including negligence), misrepresentation, strict liability, breach of contract or breach of warranty of TRANS PLUS, and infringement of third party rights, even if TRANS PLUS has been advised of the possibility of such damages.
7. REPRESENTATIONS AND WARRANTIES
TRANS PLUS hereby represents and warrants to LICENSEE that: a. TRANS PLUS is the owner of all right, title and interest, including copyright, in all the Licensed Materials. b. TRANS PLUS has not granted any rights or licenses to the License Materials that would conflict with TRANS PLUS’s obligations under this Agreement. c. LICENSEE’s use of the Licensed Materials as authorized by this Agreement will not infringe any existing copyright, trade secret, patent or trademark rights of any third party. TRANS PLUS does NOT warrant to LICENSEE that the functions contained in the PROGRAM will meet the LICENSEE requirements or that the operation of the PROGRAM will be uninterrupted or error free.
TRANS PLUS may terminate this Agreement and discontinue this LICENSE if the LICENSEE fails to comply with any of the terms, conditions and restrictions set forth in this Agreement. The LICENSEE may terminate it at any time by destroying all copies, versions and derivative works (physical, logical, and installed) of the PROGRAM and Documentation in its possession.
9. RETURN OR DESTRUCTION OF PROGRAM UPON TERMINATION
Upon termination of this Agreement, the LICENSEE shall return the PROGRAM to TRANS PLUS or shall certify in writing furnished to TRANS PLUS that the PROGRAM and all copies, versions or derivative works (physical, logical, and installed) of the PROGRAM as permitted under this Agreement have been destroyed. TRANS PLUS shall have a reasonable opportunity to conduct an inspection of LICENSEE’s place of business to assure compliance with this provision.
10. TITLE TO SOFTWARE
The Software with any customization, including its code, documentation, appearance, structure and organization, is a proprietary product of TRANS PLUS and is protected by copyright and other laws. TRANS PLUS retains title to and ownership of the Software and all enhancements, modifications and updates of the Software.
11. MODIFICATION AND ENHANCEMENTS
The LICENSEE will make no efforts to reverse engineer the Software, or make any modifications and updates of the Software without TRANS PLUS’s express written consent.
12. THE PROGRAM
The PROGRAM shall consist of all the modules and/or components purchased by the LICENSEE and to any updates, enhancements, or add-on components that TRANS PLUS may provide to LICENSEE or make available to LICENSEE at a future date. Each Software module or component, specification and proposal included or referred to in any future Purchase Agreement is expressly incorporated by reference herein.
The Documentation shall consist of all operator and user materials, training material, guides, listings, specifications, and other materials for use in conjunction with the PROGRAM. LICENSEE shall have the right, as part of the license granted herein, to make as many additional copies of the Documentation for its own use as it may determine.
14. SOFTWARE INSTALLATION AND ACCEPTANCE
TRANS PLUS shall install the PROGRAM on the Hardware. TRANS PLUS shall successfully conduct all of its own testing procedures on the PROGRAM. Upon successful completion of every element, the LICENSEE shall execute a Written Notice of Acceptance of the PROGRAM. A Written Notice of Acceptance will be submitted every time the LICENSEE adds a new module or component.
15. NEW LOCATION
LICENSEE may, at any time, without prior notice or consent of TRANS PLUS, transfer the PROGRAM to any location other than the site of initial installation for use on any other central processing unit (“CPU”) which is owned or controlled by LICENSEE or by subsidiaries or any other entities owned or controlled by LICENSEE. LICENSEE shall thereafter promptly give TRANS PLUS notice of such new location.
16. MULTIPLE USE OPTION
Licensee shall have the option to install the PROGRAM and related databases on as many servers and\or server instances as deemed necessary to fulfil business process requirements. The number of users accessing all combined servers and/or server instances cannot exceed the maximum number of concurrent sessions (herein User Licenses) for which the LICENSEE has paid TRANS PLUS the required license fee. Where applicable, the total number of active trucks in all combined servers and/or server instances also cannot exceed the maximum number of Vehicle Licenses for which the LICENSEE has paid TRANS PLUS the required license fee.
Pursuant to a mutually agreed upon schedule, TRANS PLUS shall provide sufficient experienced and qualified personnel to conduct training at a mutually agreed upon location. Training costs shall be charged at TRANS PLUS’s prevailing rates.
18. TRANS PLUS INNOVATION PARTNERSHIP (T.I.P.)
TRANS PLUS shall provide maintenance, additional support and enhancements in connection with the PROGRAM, pursuant to the T.I.P. Agreement executed concurrently herewith, a copy of which is annexed hereto. TRANS PLUS hereby grants to LICENSEE the option to annually renew said contract, should additional components be added, the contract amount will be adjusted accordingly to reflect additional coverage.
Enrolment in the Escrow program is achieved through the execution of a separate agreement. The LICENSEE opts to enlist in the program by signing a BENEFICIARY ENROLLMENT NOTIFICATION and is bound by the terms and conditions of the ESCROW TERMS AND CONDITIONS document. To be enrolled the LICENSEE realizes there will an annual fee payable to TRANS PLUS. Enrolment in the Escrow Program is contingent upon active participation in T.I.P. Termination of the T.I.P. Agreement will result in release from the Escrow Program.
Each party agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party, which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this Agreement. The PROGRAM contains trade secrets and proprietary expertise that belongs to TRANS PLUS and it is being made available to LICENSEE in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS.
21. TRANS PLUS’S PROPIETARY NOTICES
LICENSEE agrees that any copies of the PROGRAM or Documentation which it makes pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices included therein by TRANS PLUS and, except as expressly authorized herein. LICENSEE shall not distribute same to any third party without TRANS PLUS’s prior written consent.
LICENSEE may not sub-license, rent or lease PROGRAM nor may the LICENSEE assign or transfer the PROGRAM license without the expressed written consent of TRANS PLUS.
23. LIMITATION OF LIABILITY
The sole obligation of TRANS PLUS to the LICENSEE shall be in good faith and will be to exercise its best efforts to correct any malfunctions in the PROGRAM so that it will so perform. TRANS PLUS, except for the limited warranty above, shall not be liable to LICENSEE for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use the PROGRAM. In no event will TRANS PLUS be liable to LICENSEE for any claims by a third party even if a TRANS PLUS agent, dealer, and employee had been advised of the possibility of such loss, damages, claims or cost. The agents, dealers, and employees of TRANS PLUS are not authorized to make modification to this warranty, or additional warranties binding on TRANS PLUS about or for the PROGRAM. Accordingly, additional statements, whether oral or written, except signed written statements from an officer of TRANS PLUS, do not constitute warranties and should not be relied upon. This warranty gives LICENSEE specific legal rights and LICENSEE may also have other rights which vary by geographical location. TRANS PLUS liability in connection with this agreement shall be limited to the amount paid for the software, if any. This limitation will apply even in the event of a fundamental or material breach or a breach of the fundamental or material terms of this agreement.
All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by certified mail, return receipt requested, to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party.
If any provision of this agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.
26. NO WAIVER
The failure by any party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.
27. COMPLETE AGREEMENT
This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except in a writing executed by both parties. IN WITNESS WHEREOF, the parties have executed this Agreement by signing the Notice of Acceptance, with full knowledge of its content and significance and intending to be legally bound by the terms hereof.