TRUCKDESTINO™ END USER LICENSE AGREEMENT
This copy of TruckDestino and accompanying documentation is Licensed and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property, or its Subsidiaries, affiliates, and suppliers (collectively) own intellectual
WHEREAS, Licensor has developed and designed a dispatch and delivery related software product called TRUCKDESTINO™ (“Software”), and Licensee desires to use such Software.
1. LICENSE. Licensor is and remains the owner of all right, title, and interest in and to the Software. Licensor hereby grants to Licensee, for the term of this Agreement, a non-exclusive, non-transferable license to use the Software in object code form:
(i) installed on an electronic storage device (“Device,” which includes, but is not limited to, a personal computer, an iPhone, an iPad, an electronic “tablet” computer, or similar hand-held electronic device capable of using the Software) of up to the number of Devices owned or leased by Licensee for which Licensee has paid a license fee (“Permitted Number of Devices”); or
(ii) provided the Software is configured for network use, installed on a single file server for use on a single local area network for either (but not both) of the following purposes: (a) permanent installation onto a hard disk or other storage device of up to the Permitted Number of Devices; or (b) use of the Software over such network, provided the number of Devices
(iii) Licensor is providing Software only. Licensee is responsible for procuring and maintaining the Devices and/or hardware on which the Software will be utilized. Licensee will not make copies of the Software or allow copies of the Software to be made by others, unless authorized by this License Agreement. For backup purposes only, Licensee may make one
(1) archival copy of the Software provided License affixes to such copy all copyright, confidentiality, and proprietary notices that appear on the original. EXCEPT AS EXPRESSLY AUTHORIZED ABOVE, LICENSEE SHALL NOT: COPY, IN WHOLE OR IN PART, SOFTWARE OR DOCUMENTATION; MODIFY THE SOFTWARE; REVERSE COMPILE OR REVERSE ASSEMBLE ALL OR ANY PORTION OF THE SOFTWARE; OR RENT, LEASE, DISTRIBUTE, SELL, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE. Licensee shall not have the right to grant sublicenses under this License without the prior written consent of Licensor.
2. LIMITED WARRANTY. Licensor warrants that for a period of ninety (60) days (“the Acceptance Period”) from the date of download from Licensor:
(i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and
(ii) the Software substantially conforms to its published specifications. In the event that Licensee fails to notify Licensor of any difficulties or problems with the Software within 30 days after installation thereof, Licensee shall be deemed to have accepted the Software, and Licensor shall be under no obligation to repair or replace such Software. Prior to the acceptance of such Software, Licensor shall have the right to repair or replace the Software at its discretion. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to Licensee as the original licensee. Licensee’s exclusive remedy and the entire liability of Licensor and its suppliers under this limited warranty will be, at Licensor or its service center’s option, repair, replacement, or refund of the Software if reported (or, upon request, returned) to the party supplying the Software to Licensee. In no event does Licensor warrant that the Software is error free or that Licensee will be able to operate the Software without problems or interruptions. This warranty does not apply if the software
(a) has been altered, except by Licensor,
(b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Licensor,
(c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or
(d) is used in ultra hazardous activities.
DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF Licensor OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event shall Licensor’s or its suppliers’ liability to Customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Customer. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. The above warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which Licensor does not receive Training and Monthly Fees. All such software products are provided AS IS without any warranty whatsoever. Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software.
3. CONFIDENTIALITY. Licensee recognizes that aspects of the Software, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Licensor. Licensee agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior express written consent of Licensor. Customer agrees to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with Licensor. The provisions of this clause shall survive termination of this Agreement. Any improvements to the Licensor’s Software, technology or products related thereto, made by the Licensee, resulting from or relating to any disclosure made to the Licensee by the Licensor, shall be disclosed by the Licensee to the Licensor. Such improvements are the sole property of the Licensor. Licensee agrees that it will execute any and all assignment or other documents as may be requested by the Licensor to perfect the rights of the Licensor to such improvements.
4. TRADEMARK RIGHTS. Licensor owns trademark rights, including for (but not limited to) TRUCKDESTINO (a standard character mark) and a logo (referred to collectively as “the Trademarks”), both of which may appear as part of the Software. In order to protect and preserve Licensor’s rights in the Trademarks, Licensee understands, acknowledges, and agrees that Licensee shall obtain Licensor’s approval of all use of the Trademarks. Once use of the Trademarks is initially approved by Licensor, any subsequent material alteration, modification, or change in such use must be reviewed and approved, in writing, by Licensor prior to implementation of such alteration, modification, or change. Licensor retains the right to inspect and specify, from time to time, the format in which Licensee shall use and display the Trademarks, and Licensee shall only use or display the Trademarks in a format acceptable to and approved by Licensor. Every use of the Trademarks shall incorporate a “TM” (optionally enclosed by a circle) indicating its use as a trademark. Licensor will notify Licensee of any registration status changes, and Licensee shall change the corresponding designations accordingly. Licensee shall not at any time, whether during or after the term of this Agreement, do or cause to be done any act or thing challenging, contesting, impairing, invalidating, or tending to impair or invalidate any of Licensor’s rights in the Trademarks or any registrations derived from such rights. Licensee acknowledges and agrees that Licensor has, shall retain, and may exercise, both during the term of this Agreement and thereafter, all rights and remedies available to Licensor, whether derived from this Agreement, from statute, or otherwise, as a result of or in connection with Licensee’s misuse of the Trademarks, or any other use of the Trademarks by Licensee which is not expressly permitted by this Agreement.
5. ASSIGNABILITY. Licensee acknowledges and agrees that the rights granted to Licensee by and obtained by Licensee as a result of or in connection with this Agreement are license rights only, and nothing contained in this Agreement constitutes or shall be construed to be an assignment of any or all of Licensor’s rights in the Software or in the Trademarks. Licensee shall not assign, sublicense, transfer, or otherwise convey Licensee’s rights or obligations under this Agreement without Licensor’s prior written consent. Licensee shall indemnify and hold harmless Licensor against all liability, costs, and expenses, including but not limited to a reasonable attorneys’ fee, arising out of or in connection with claims relating to an attempted assignment, sublicense, transfer, or other conveyance of Licensee’s rights and obligations.
6. JURISDICTION AND DISPUTES. This License shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. The parties consent to the jurisdiction of such courts, agree to accept service of process by electronic mail and waive any jurisdictional or venue defenses otherwise available.
7. SEVERABILITY. In the event that any one or more of the provisions of this Agreement is held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired and enforced to the full extent.
8. INTEGRATION. This License constitutes the entire License between the parties with respect to the use of the Software and Trademarks.
9. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same Agreement.
10. AGREEMENT BINDING ON SUCCESSORS. This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their respective successors, heirs, legal representatives and permitted assigns.