Terms and Conditions
CONTINENTAL AUTOMOTIVE SYSTEMS, INC. WEB PORTAL USE AGREEMENT
Your use of the any of the RoadLog™ Web Portal websites, including www.vdoroadlog.com, https://ws01.caritc.com/eld-production/, Roadlogpointer.com, and any other website that Continental may make available to enable or support the RoadLog™ services (any of which is referred to herein as the “Website”) and/or the associated applications, services and materials (the “Applications”) is contingent upon your acceptance of this Continental Automotive Systems, Inc. Web Portal Use Agreement (the “Agreement”) and the terms and conditions that follow. If you do not agree to these terms and conditions, you are not permitted to use the Website or the Applications.
- OWNERSHIP; LICENSE; RESTRICTIONS ON USE
1.1 You understand and agree that Continental Automotive Systems, Inc. or its affiliates and subsidiaries (collectively, “Continental”) may make available on the Website for your review certain Content (as defined below) derived from and relating to vehicle and driver related data generated by the VDO RoadLogTM Electronic Logging Device.
1.2 You understand and agree that Continental owns all right, title and interest in and to (or where required, appropriate or applicable has been licensed by third parties to use) the Website or the Applications and the products and services made available on or through the Website or the Applications and all information, text, data, databases, graphics, images, sound recordings, audio and visual clips, logos, software and other content contained therein, and the collection, design, selection and arrangement thereof (collectively, the “Content”). Continental hereby grants you a limited, non-exclusive, non-transferable, worldwide license to use the Website and the Applications solely for the management of information related to your VDO RoadLogTM Electronic Logging Device, subject to the terms and conditions of this Agreement. Unauthorized use of the Website or the Applications violates copyright, trademark and other laws. All rights not expressly granted to you under this Agreement or an applicable, validly executed license or service agreement between you or your organization and Continental are reserved by Continental. Except as expressly provided to you in such agreement, any alteration, modification, reproduction, redistribution, retransmission, redisplay or other use of any Content in any other manner or for any other purpose constitutes infringement of Continental’s intellectual property and other proprietary rights. Other than as required to facilitate your permissible use, you may not reproduce, perform, create derivative works from, republish, upload, post, retransmit or redistribute in any way whatsoever any Content.
1.3 You shall not interfere with or otherwise challenge Continental’s rights in the Website or the Applications. You shall not remove, modify or alter, or cause or allow to be removed, modified or altered, any copyright or trademark notice, author attribution or other notice placed on or contained within the Content or otherwise on the Website or the Applications. Except as expressly authorized by Continental in writing, in no event shall you reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, all or any portion of the Content. You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute Content. You may not take any action to interfere with or disrupt the Website or the Applications, circumvent security measures, or attempt to exceed the limited authorization and access granted to you by Continental.
- ACCESS TO APPLICATIONS
2.1 Only owners of the VDO RoadLogTM Electronic Logging Device or such owner’s employees may access or use the Website or the Applications. Your acceptance and agreement below is a representation and warranty from you that both you and your employer are authorized by Continental to access and use the Website or the Applications, and that you are the person to whom the user name and password which you use to access the Website or the Applications has been issued by Continental. Continental must be immediately notified at roadlog-support@Zonarsystems.onmicrosoft.com upon the termination of any employee with access to the Website.
2.2 At Continental’s discretion, you may be restricted from accessing the Website or certain Applications.
2.3 Materials and features may be added to or withdrawn from the Website or the Applications, and the Website or the Applications may be otherwise changed or discontinued at any time without notice.
2.4 Continental may terminate your access to the Website or the Applications at any time, for any reason and without advance notice, and in addition to terminating access, Continental may pursue any other remedy legally available to it if you fail to comply with any of your obligations hereunder.
2.5 You agree not to give or make available your username or password or other means to access your account to any unauthorized individuals. If you believe that your password or other means to access your account has been lost or stolen or that someone may attempt to use the Website or the Applications without your consent or without your permission, you must notify Continental immediately by contacting email@example.com.
- REPRESENTATIONS AND WARRANTIES AND DISCLAIMER
3.1 You represent and warrant that all information and data provided by you or your organization, agents or representatives are accurate and complete, and you acknowledge that Continental relied on such information, data and samples in granting you access to the Website or the Applications.
3.2 THE WEBSITE, APPLICATIONS, CONTENT AND ANY RELATED MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND CONTINENTAL EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY. CONTINENTAL DOES NOT GUARANTEE OR WARRANT THE AVAILABILITY OF THE WEBSITE OR THE APPLICATIONS, AND THE WEBSITE OR THE APPLICATIONS MAY CONTAIN BUGS, VIRUSES, ERRORS OR OTHER PROBLEMS FOR WHICH CONTINENTAL DISCLAIMS ALL LIABILITY. YOU AGREE THAT YOU WILL NOT MAKE A CLAIM AGAINST CONTINENTAL FOR INACCURATE CONTENT, WORK DELAYS OR LOST PROFITS RESULTING FROM YOUR USE OF OR INABILITY TO USE THE WEBSITE OR THE APPLICATIONS.
- LIMITATION OF LIABILITY
4.1 Continental, any third party supplier of Content, and any officer, director, employee, subcontractor, agent, successor, assign, affiliate or subsidiary of Continental or any such third party supplier of Content (each, a “Covered Party” and collectively, the “Covered Parties”) shall in no event be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from (a) any errors in or omissions from the Website or the Applications or any Content or materials available or not included therein, (b) the unavailability or interruption of the Website or the Applications or any features thereof or any Content or materials included therein, (c) your use of the Website or the Applications, Content or materials (regardless of whether you received any assistance from a Covered Party in using the Website or the Applications), (d) your use of any equipment in connection with the Website or the Applications, (e) the Content available through the Website or the Applications, or (f) any delay or failure in performance of or based on the Website or the Applications.
4.2 THE COVERED PARTIES SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF INFORMATION), WHETHER BASED IN WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN ANY WAY DUE TO, RESULTING FROM OR ARISING IN CONNECTION WITH THE WEBSITE, APPLICATIONS OR CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY AND REGARDLESS OFW HETHER ANY COVERED PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
5.1 By using the Website or the Applications, you (and your organization) agree to defend, indemnify and hold harmless any Covered Party, from and against any and all claims, causes of action, lawsuits, proceedings, losses, damages, costs and expenses (including reasonable legal and accounting fees) arising or resulting from (i) your use of the Website or the Applications, (ii) incomplete or inaccurate information or data provided by you, (iii) unauthorized access to, or re-use of any reports, data, calculations, estimates, documents, Content or materials available on or through the Website or the Applications or (iv) your breach of this Agreement.
5.2 Continental reserves the right, at its discretion, to assume or participate, at your and your organization’s expense, in the investigation, settlement and defense of any action or claim from which it is entitled to indemnification.
- INFORMATION OWNERSHIP
The data and information that you access using the Website or the Applications, including but not limited to all standards, reports, compositions, analyses, figures and related data shall be the exclusive property of Continental, except as otherwise agreed to by Continental in a written agreement.
- THIRD PARTY CONTENT LINKS
The Website or the Applications may provide links to other websites or applications and those sites may or may not be under the control of Continental. Continental is not responsible for the contents or accuracy of any linked site or application or any link contained in any linked site or application, and the inclusion of any link does not imply endorsement. If you decide to access any third party website or use any other application linked to or referenced in the Websites or the Applications, you do so entirely at your own risk.
- SYSTEM BACKUP
To comply with commercial motor vehicle driver hours of service regulations, 49 CFR 395.1 et seq., you must regularly backup your computer systems and store on separate media all Content, including data from the VDO RoadLogTM Electronic Logging Device, located thereon. You are responsible for adequately protecting and backing up data or equipment used in connection with or to access the Website or the Applications. Continental strongly advises you to perform a complete backup of your computer systems prior to receiving any maintenance or support services from Continental and to store such backup copies in a manner such that recovery of secured data is possible at any time. You are responsible for engaging the automatic backup feature included with the software used in connection with the VDO RoadLogTM Electronic Logging Device and ensuring that the feature works.
10.1 Continental may revise this Agreement from time to time. If any updates to this Agreement are unacceptable to you, (i) you should refuse to accept the updated terms proposed by Continental, (ii) you must cease use of the Website and Applications, and (iii) you may terminate this Agreement. Your continued use of the Website or the Applications after the date on which the terms of this Agreement have changed constitutes your acceptance of any revised or updated terms and conditions of use. The Website or the Applications would not be made available to you without the limitations set forth herein. As such, by your use of the Website or the Applications you agree that the limitations set forth herein are reasonable and necessary.
10.3 The failure of Continental to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
10.4 Neither you nor your respective organization may assign its rights or delegate its duties without the prior written consent of Continental.
10.5 If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
10.6 Any claim relating to the Website or Applications shall be governed by and construed in accordance with the laws of the State of North Carolina, United States of America, without regard to its conflict of laws principles, and all legal proceedings related to this Agreement or use of the Website or Applications may only be brought in North Carolina. You hereby consent to the exclusive jurisdiction of such courts in any such action or proceeding and irrevocably waive any objection based upon inconvenience of the forum or otherwise to venue therein.
10.7 This Agreement and any supplemental terms or related statements also available on the Website through which the Applications are offered, and with which you should also consult, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any other agreement regarding the Website or Applications or the use thereof.
Special Terms for Satellite Services
- Disruptions in Satellite Services. The provision of Services that utilize third party satellite systems and associated services (“Satellite Services”) to Subscriber relies on the proper functioning of Continental’s own equipment, as well as the proper functioning of the equipment forming the satellite system provided by Continental’s licensor (“Licensor”) and not under Continental’s control. Continental’s obligations to provide Satellite Services to Subscriber is subject to each of the following:
(a) The proper functioning of the satellite system owned by Licensor;
(b)The proper functioning of any third party gateway operator or terrestrial carrier system relied upon to complete a transmission or call (such as long-distance, roaming, exchange or interconnection providers); and
(c) The availability of capacity on the Licensor satellite system.
- System Limitations. Be advised of the following constraints on Continental’s ability to provide Satellite Services without disruption:
(a) Each of Continental’s system and the Licensor satellite system is inherently capacity constrained;
(b) Satellite Services may be refused or limited, without liability to Continental or Licensor, due to capacity limitations, including capacity limitations due to any repair, testing, upgrade or modification work on either Continental’s system or Licensor’s satellite system;
(c) Emergency access on the Licensor system by public safety organizations may preempt Subscribers’ use on the system;
(d) Satellite Services are subject to disruptions and/or deficiencies caused by atmospheric or terrain conditions or in-building conditions;
- Equipment. All satellite equipment should be operated with a clear view of the sky and no obstructions. Equipment used on the Licensor system may be “Registered Products” or “Certified Products”.
(a) “Certified Products” have been tested to ensure that their performance meets Licensor’s certification performance specifications. Continental equipment has been certified for the Licensor system.
(b) “Registered Products” are approved for operation on the Licensor System, but have no associated performance requirements.
- Roaming. Every nation has the sovereign right to specify limits on roaming. It is the Subscriber’s responsibility to be cognizant of, and compliant with any laws or requirements imposed by the location that they roam into, and to confirm that they are allowed to use the equipment in that location. Licensor is not liable for confiscation of equipment, lost revenue, fines, penalties or any other consequences resulting from illegal or disallowed roaming usage.
- Limitation of Liability. Subscriber acknowledges and agrees that its sole remedy for damages due to any failure, disruption or degradation in Satellite Services shall be limited to the charges imposed for the affected Satellite Services for the period such failure, disruption or degradation occurred. IN NO EVENT SHALL CONTINENTAL OR ITS LICENSOR BE LIABLE, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, FOR LOSS OF PROFITS, OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND.
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the “Agreement”) is effective as of the date on which the user accepts these terms by clicking on the Acceptance button at the end of the Agreement (the “Effective Date”), and is between Continental Automotive Systems, Inc., a Delaware corporation with a place of business at Allentown, Pennsylvania (the “Licensor”), and the purchaser of the RoadLog System (hereinafter defined) of which this program is a part (the “Licensee”).
WHEREAS, Licensor has developed and is the owner of all right title and interest in and to the Fleet Software (hereinafter defined);
WHEREAS, Licensee desires a non-exclusive license to use the Software; and
WHEREAS, Licensor is willing to grant such a license on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained in this Agreement, Licensor and Licensee agree as follows:
- “Affiliate” shall mean, with respect to any Person, any other Person that controls or is controlled by or under common control with such Person; provided, that a Person shall be deemed to be an Affiliate only so long as such control exists. For the purposes of this definition, “control,” when used with respect to any Person, means ownership of at least fifty percent (50%) of the voting stock, shares or other equity interest in the controlled Person and possession of the power to direct or cause the direction of the management and policies of the controlled Person.
- “Confidential Information” shall have the meaning set forth in Section 1.
- “Documentation” shall mean any description of the Fleet Software’s specifications, features, interface, operating environment, requirements and uses, including any user instructions, installation instructions or other instructional material about the proper operation of the Fleet Software.
- “Effective Date” shall have the meaning set forth in the preamble to this Agreement.
- “Fleet Software” shall mean the object code (machine readable) version of the software owned by Licensor and licensed hereunder, and any ancillary data files, modules, libraries, tutorial or demonstration programs or other components and copies of any of the foregoing or portions thereof.
- “Licensed Property” shall mean the Fleet Software and the Documentation.
- “Person” means any individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind.
- “RoadLog System” means a system for managing records of duty status for commercial vehicle drivers, sold under the brand RoadLogTM, which operates in accordance with commercial motor vehicle driver hours of service regulations, 49 CFR 395.1 et seq.
GRANT OF LICENSE
- Grant of License. Subject to the observance by Licensee of the terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, perpetual, worldwide, non-transferable (except as set forth in Section 5), fully paid, limited license to use the Licensed Property solely for the purpose of utilizing a RoadLog System (the “License”). Any use of the Licensed Property not expressly permitted by this Agreement is prohibited. For avoidance of doubt, this License shall also apply to any license extensions granted by Licensor to Licensee.
- License Restrictions. Licensee agrees that it has no right to modify the Fleet Software or to permit any third party to do so. Licensee shall not make any derivative works of the Fleet Software and ownership of any unauthorized derivative works shall vest in Licensor. Licensee further agrees that it shall not permit persons other than its employees to access and use the Licensed Property and shall not use the Licensed Property in breach of any applicable laws, regulations or market conventions.
- No License to Other Products. The License granted above is limited to the Licensed Property. It is Licensee’s responsibility to evaluate whether licenses to other products are necessary or desirable in order to utilize the License granted herein. Licensor makes no representations or warranties with regard to the necessity of licenses to other products.
Licensor may, without notice and at any time during reasonable business hours, but not more than once every twelve months, either on its own or through its duly authorized representative, conduct an audit of the use by Licensee of the Fleet Software to ensure that Licensee is complying with the terms of this Agreement.
SERVICES AND UPDATES
- Except as may otherwise be expressly provided in writing, Licensor is under no obligation to provide any services to Licensee with respect to the Licensed Property (including, without limitation, any installation of the Fleet Software, training or maintenance). In the event that the Licensor does provide maintenance services for the Fleet Software, Licensee acknowledges that any information or data submitted to the Fleet Software may be accessed by or shared with Licensor’s contractors for purposes of performing maintenance on the Fleet Software.
- In no event is Licensor required to provide Licensee with any enhancements, updates, or upgrades to the Software. If, however, Licensor furnishes to Licensee any enhancements, updates, or upgrades to the Software, Licensee’s use of such enhancements, updates, or upgrades shall be subject to the terms and conditions of this Agreement.
Licensee shall be liable for all local, state and federal sales, use, withholding, excise, personal property, value-added, or other similar taxes, assessments or duties that may now or hereafter be imposed upon this Agreement or that are based on or in any way relating to this Agreement, the Licensed Property, or any services related thereto, excluding, however, taxes on Licensor’s income.
DELIVERY OF THE LICENSED PROPERTY
- Delivery of Documentation. Licensor shall furnish Licensee one (1) master copy of the Documentation. The parties agree that Licensor’s obligation to deliver Documentation is limited to such Documentation that exists for delivery by Licensor to Licensee as of the Effective Date. Upon delivery of any such Documentation, Licensor shall have no obligation to retain any copies of materials.
- Delivery of Fleet Software. Licensor shall make available to Licensee one (1) master copy of the Fleet Software.
- SYSTEM BACKUP
Licensee shall regularly backup its computer systems and store on separate media all content, including but not limited to all information, documents, text, data (including data from the RoadLog System), databases, graphics, images, sound recordings, audio and visual clips, and software located thereon. Licensee agrees that it will perform a complete backup of its computer systems prior to installation of the Fleet Software and immediately prior to receiving any maintenance or support services from the Licensor. Licensee is responsible for engaging the automatic backup feature included with the Fleet Software and for ensuring that the feature works. Licensee shall store backup copies of its systems in a manner such that recovery of secured data is possible at any time.
TERM AND TERMINATION
- This Agreement shall remain in effect perpetually unless and until terminated pursuant to Section 8.2 hereof.
- This Agreement and the License granted hereunder may be terminated immediately by Licensor in the event Licensee materially breaches any of the provisions of this Agreement and does not cure such breach within thirty (30) days of receipt from Licensor of notice of such breach. Notwithstanding the foregoing, there shall be no cure period for any breach by Licensee of Articles 9 or 13 hereof.
Effect of Termination. Immediately upon any termination of this Agreement:
- The License and all rights related to the License granted hereunder shall terminate and Licensee shall immediately cease use of the Licensed Property; and
- Licensee shall return the Licensed Property (including all copies thereof) to Licensor.
- The provisions of Articles 8, 9, 10, 11, 12, 13, and 15 hereof shall survive the termination of this Agreement for any reason.
- Proprietary Rights. Licensee acknowledges that: (i) Licensor owns the full right, title and interest in and to the Licensed Property and all related intellectual property rights, including but not limited to patents, copyrights, trademarks, trade names, trade secrets, and any and all alterations, adaptations, modifications, or changes to the Licensed Property or derivative works; and (ii) Licensee shall have no right or interest in or to the Licensed Property or any related intellectual property, including but not limited to patents, copyrights, trademarks, trade names, trade secrets, and any alterations, adaptations, modifications, or changes to the Licensed Property or derivative works.
- Protection of Proprietary Rights. Licensee acknowledges that the Fleet Software contains trade secrets of Licensor, and Licensee agrees not to disassemble, decompile or reverse engineer the Fleet Software, nor permit any third party to do so. Licensee further agrees that it shall not copy or duplicate the Licensed Property except in accordance with this Agreement. For avoidance of doubt, Licensee shall have the right to make a reasonable number of copies of the Fleet Software solely for archival, emergency, back-up, or disaster recovery purposes. The original and all copies of the Fleet Software in Licensee’s possession shall be the property of Licensor.
WARRANTIES AND DISCLAIMER
- Licensor’s Warranty. Licensor represents and warrants that it has the right and authority to grant the License hereunder with respect to the Licensed Property.
- Performance Warranty. Licensor warrants that, for a period of one (1) year after delivery of the Licensed Product, the Fleet Software will function in accordance with accompanying Documentation in all material respects. As Licensee’s sole and exclusive remedy and Licensor’s entire liability for any breach of the foregoing warranty, Licensor will repair or replace, at no additional charge to Licensee, any Fleet Software that fails to meet this limited warranty. The limited warranty set forth herein shall automatically become null and void if: (i) the Fleet Software is not used in accordance with the Documentation; or (ii) the defect is caused by Licensee, a modification, or by third-party software.
- EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 10, LICENSOR MAKES NO WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NONINFRINGEMENT. FOR AVOIDANCE OF DOUBT, LICENSOR DOES NOT WARRANT THAT THE FLEET SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM MINOR DEFECTS OR ERRORS THAT DO NOT MATERIALLY AFFECT SUCH PERFORMANCE, OR THAT THE APPLICATIONS CONTAINED IN THE FLEET SOFTWARE ARE DESIGNED TO MEET ALL OF LICENSEE’S BUSINESS REQUIREMENTS.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL LICENSOR BE LIABLE UNDER ANY CLAIM, DEMAND OR ACTION ARISING (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, OR LOSS FROM BUSINESS DISRUPTION, REGARDLESS OF WHETHER OR NOT LICENSOR, ITS EMPLOYEES OR AGENTS HAD BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
Licensee agrees to defend, indemnify, and hold harmless Licensor, its Affiliates, and their officers, directors, shareholders, employees, and agents from and against any claim brought against Licensor arising out of Licensee’s use or misuse of the Licensed Property, provided that: (i) Licensor promptly notifies Licensee in writing of the claim; and (ii) Licensor provides Licensee with all assistance, information and authority reasonably required for the defense or settlement of the claim. Notwithstanding the foregoing, no settlement or compromise of any such claim may be made by Licensee without the written consent of the Licensor, such consent not to be unreasonably withheld or delayed.
- Definition of Confidential Information. “Confidential Information” of a party to this Agreement means Fleet Software, Documentation, and any proprietary materials or non-public business information (including any pricing information) or technical information that is disclosed to the other party pursuant to this Agreement. Confidential Information does not include information which: (i) is or becomes publicly available without fault of the receiving party; (ii) is independently developed by the receiving party without use or access to the disclosing party’s Confidential Information; or (iii) was known to the receiving party prior to its receipt of the Confidential Information from the disclosing party and is not subject to other restrictions on disclosure or use.
- Protection of Confidential Information. The receiving party will not use or disclose any Confidential Information of the other party except as expressly permitted herein and will use all reasonable measures to maintain the confidence of all such Confidential Information, which measures will in no event be less than the measures that the receiving party takes to protect its own Confidential Information. Each party shall limit access to the other party’s Confidential Information to those who require such access in order for a party hereunder to perform its rights and obligations in accordance with this Agreement. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to the extent required by law or by order of a court or governmental agency of competent jurisdiction; provided, however, that the receiving party shall give the disclosing party prompt notice of the disclosure, and shall use reasonable efforts to cooperate with the disclosing party, at the disclosing party’s expense, if the disclosing party wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information.
COMPLIANCE WITH LAWS AND EXPORT REGULATIONS
- Compliance with Laws. Licensee’s use of the Licensed Property will comply with all laws, rules, and regulations of the United States and any other country, which may be applicable to the Licensed Property.
- Export Control. The Licensed Property is being released or transferred to Licensee in the United States and is therefore subject to the U.S. export control laws. Licensee acknowledges its obligation to ensure that its exports from the United States are in compliance with the U.S. export control laws. Licensee shall also be responsible for complying with all applicable governmental regulations of any foreign countries with respect to the use of the Licensed Property outside of the United States. Licensee agrees that it will not submit the Licensed Property to any government agency for licensing consideration or other regulatory approval without the prior written consent of Licensor.
- Relationship of the Parties. Nothing in this Agreement shall be deemed to create an agency, partnership, employment or joint venture relationship between the parties.
- This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors or permitted assigns. Nothing in this Agreement is intended to confer on any person other than the parties hereto, and their successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
- This Agreement cannot be amended except by a writing that specifically references this Agreement and is signed by both parties. In no event will any purported amendment or agreement be binding on a party, unless executed by an officer of such party.
- Governing Law. This Agreement shall be enforced, governed by, and construed in accordance with the laws of North Carolina, regardless of the choice of law or conflict of law provisions of North Carolina or any other jurisdiction. The parties agree that any suit brought in connection with this Agreement shall be brought in the state or federal courts in North Carolina. Each party hereby irrevocably waives any objection to venue, including an objection based on the grounds of forum non conveniens, which such party now has or hereafter may have to the bringing of any action or proceeding in such jurisdiction.
- Licensee may not assign this Agreement except in the event of the sale of all or substantially all of its assets or shares, with prior written notice to Licensor. Otherwise, Licensee must obtain written consent of Licensor, which consent shall not be unreasonably withheld, delayed or conditioned, to assign any rights or obligations under this Agreement.
- No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
- If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be deemed stricken and the remainder of this Agreement shall continue in full force and effect insofar as it remains a workable instrument to accomplish the intent and purposes of the parties. The parties shall replace the severed provision with the provision that will come closest to reflecting the intention of the parties underlying the severed provision but that will be valid, legal, and enforceable.
- Every notice, demand, consent, request, approval, report, offer, acceptance, certificate, or other communication that may be, or is required to be, given or delivered under or with respect to this Agreement or by applicable law shall be in writing and shall be deemed to have been sufficiently given for all purposes hereof upon receipt if sent by overnight delivery (receipt verified) to the address below or delivered personally to the address below or at such other address within the continental United States as the receiving party may hereafter designate by similar notice to the other:
if to Licensor, to:
6755 Snowdrift Road
Allentown, PA 18106
Attention: Alexis Capelle
if to Licensee, to the address provided during registration of the RoadLog System.
- Entire Agreement. This Agreement constitutes the entire Agreement and understanding between the Parties and supersedes all prior agreements and understandings, both written and oral, with respect to the subject matter of this Agreement.
CONTINENTAL AUTOMOTIVE SYSTEMS, INC.
Continental Automotive Systems, Inc. (“Continental”) owns and licenses the right to use a system for managing records of duty status for commercial vehicle drivers, known as the VDO RoadLogTM Electronic Logging Device (the “Hardware”), which operates in accordance with commercial motor vehicle driver hours of service regulations, 49 CFR 395.1 et seq., and is provided through proprietary software made available via a web portal in combination with the Hardware (the “Service”). You and any entity on whose behalf you use the Service are referred to as the “Subscriber.”
Subscriber’s use of the Service is contingent upon Subscriber’s acceptance of this Continental Automotive Systems, Inc. Subscription Agreement (the “Agreement”) and the terms and conditions that follow. If Subscriber does not agree to these terms and conditions, Subscriber is not permitted to use the Service.
- Service. Subject to payment of the Service Fees (defined below) and Subscriber’s adherence to the terms and conditions of this Agreement, Continental hereby grants to Subscriber a limited, revocable, non-exclusive, and non-transferable right to access and use the Service during the Term (defined below).
Use Requirements, Restrictions and Limitations. The following requirements and restrictions govern Subscriber’s access to and use of the Service:
- Subscriber shall not reverse engineer, de-compile or disassemble the Service or Hardware or attempt to access any data underlying the Service or circumvent the user interface or other technological measures, and shall not modify, access, download, copy, or interfere with the Hardware or its embedded software without Continental’s express consent.
- Subscriber shall not rent, sell, assign, lease, or sublicense the Service. Subscriber shall not use the Service to process or administer data on behalf of any third party.
Subscriber shall not knowingly access, store, or transmit via the Service any material that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive;
- facilitates illegal activity;
- causes damage or injury to any person or property.
- Subscriber shall not violate or attempt to violate the security of Continental’s networks, including: (i) accessing data not intended for Subscriber; (ii) accessing a server or account that Subscriber is not authorized to access; (iii) attempting to scan or test the vulnerability of a system or network or to breach security or authentication measures; or (iv) attempting to interfere with the availability or functionality of the Service, including by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing.
- Employees, Agents, Independent Contractors. Subscriber shall cause each of Subscriber’s employees, agents and independent contractors to comply with the obligations set forth in Section 2.
- Right to Disable Access. Continental reserves the right, without liability to Subscriber, to disable Subscriber’s or a user’s access to the Service for breach of Section 2.
- Additional Professional Services. If the Subscriber requests professional services in addition to the Service in order to deploy or operate the Hardware, including but not limited to configuration and set up of Hardware and enhanced support and maintenance services (the “Additional Professional Services”), Continental will perform such Additional Professional Services at its standard rates at that time, after receiving written approval from the Subscriber to begin performing the Additional Professional Services.
- Hardware. “Hardware” shall include any variations of the VDO RoadLogTM Electronic Logging Deviceand any additional hardware and materials, provided by Continental to Subscriber under this Agreement including, but not limited to cables. Title to purchased Hardware provided under this Agreement will be transferred to Subscriber. Hardware may be used only with the Services, in accordance with specifications applicable to such Hardware and all applicable laws. All purchased Hardware to be delivered by Continental or its agents to Subscriber under this Agreement shall be shipped FOB origin, such that title transfers to Subscriber when such Hardware is made available to Subscriber at Continental’s premises. Unless Subscriber has purchased Hardware installation Services from Continental or its agents, Subscriber shall be solely responsible for the proper installation of all such Hardware.
Bundled Services/Hardware. Where a Subscription Form refers to a “Bundled Service”, this references that some or all of the Hardware cost has been incorporated into a monthly Service Fee, to reduce up front capital expenditures. Unless otherwise noted, Hardware provided as part of a Bundled Service establishes an installment payment plan whereby the cost of the Hardware is paid in equal monthly installments over a period of time and otherwise remains subject to the terms of Section 2.1 above. The following terms shall be applicable for any Bundled Services:
- Bundled Services require a commitment of not less than thirty-six (36) months. If Bundled Services have been selected on the Subscription Form, the Initial Term of this Agreement shall automatically be increased to thirty-six (36) months.
- In the event that Subscriber terminates this Agreement (in whole, or in part, if such part relates to any Hardware unit included in a Bundled Service), prior to the end of the Initial Term, Subscriber shall pay to Continental, as liquidated damages, an amount equal to $20/unit multiplied by the number of months remaining in the Initial Term.
- At the end of the Initial Term, provided that Subscriber is current on payment of all Service Fees, unless Subscriber orders replacement Hardware on another Subscription Form, the Service Fee shall continue at the Service Only rates by then in effect.
- Until all Service Fee payments, and all other amounts due to Continental during the Initial Term, have been paid, Subscriber hereby grants to Continental and Continental shall retain a security interest in the Hardware and, if Subscriber sells or otherwise disposes of the goods in violation of the terms of this Agreement, in the proceeds of such sale or disposition. Subscriber appoints Continental Subscriber’s attorney-in-fact to do whatever Continental may deem necessary to perfect or continue perfected its security interest in the goods.
- Subscriber will insure the Hardware against all hazards in form and amounts and with an insurer satisfactory to Continental. Subscriber assigns to Continental all right to receive proceeds of insurance not exceeding the unpaid balance (including any costs of collection, attorney’s fees or other costs actually incurred in connection with it) and directs any insurer to pay all proceeds directly to Continental and authorizes Continental to endorse any draft for proceeds. In the event of damage to the Hardware and payment of insurance, Continental shall have the option of replacing the Hardware or applying the proceeds on any obligation secured by this agreement.
- Subscriber will keep the Hardware in good condition and free from liens and other security interests, will pay promptly all taxes and assessments upon them or with respect to their use, will not use the goods illegally or dispose of or encumber them, will not permanently remove the Hardware from the premises to which they are delivered, without the prior written consent of Continental and will not permit the Hardware to be fixtures, or to become accessions to other goods.
- In addition to any other rights or remedies available to Continental under this Agreement, in the event that this Agreement is terminated prior to the end of the Initial Term, Continental shall have the right to: (1) declare all unpaid installments and other moneys due or to become due under any Subscription Form immediately due and payable and to obtain judgment for the total amount of unpaid installments due plus interest of six percent (6%) on delinquent payments from due date and reasonable attorney’s fees; (2) enter Subscriber’s premises and without breach of the peace take possession of the Hardware; (3) exercise the rights on default of a secured party under the Uniform Commercial Code; and (4) suspend any software subscription Services applicable to the hardware. Continental may require Subscriber to assemble the Hardware and make it available to Continental at a place to be designated by Continental which is reasonably convenient to Continental and Subscriber. Continental shall have the right to take immediate possession of the Hardware wherever found, with or without legal process, and to sell or otherwise dispose of the Hardware. Subscriber will pay any deficiency that may remain after exercise of such rights plus expenses of retaking, holding, preparing for sale, selling or the like, including Continental’s reasonable attorney’s fees.
- General. Subscriber shall be solely responsible for: (a) ensuring compatibility of its systems with the Hardware; and (b) providing any connections necessary to communicate with the Hardware.
- Content. Subscriber is solely responsible for the creation, control, and all other aspects of Subscriber content transmitted via the Service. Subscriber represents and warrants that Subscriber owns or has obtained all authorizations and permissions required to use and transmit content via the Service.
- Delivery of Service. Continental shall not be liable for any delay or failure to perform resulting from the Subscriber’s failure to timely provide any information, content or other deliverables necessary to provide the Service to the Subscriber.
- Lawful Purposes. The Subscriber will use the Service only for lawful purposes and in accordance with this Agreement. The Subscriber shall comply with all applicable laws and regulations when using the Service, including without limitation, compliance with applicable international export and privacy laws and other laws regarding the transfer or transmission of data.
- Unauthorized Use. The Subscriber will be responsible for, and shall pay any applicable Service Fees associated with, any unauthorized use of Subscriber’s account.
- Use at Own Risk. Subscriber acknowledges and agrees that the Subscriber alone is responsible for complying with commercial motor vehicle driver hours of service regulations, 49 CFR 395.1 et seq. Subscriber acknowledges and agrees that use of the Service is fully at the risk of the Subscriber and that Subscriber assumes all risk arising out of such use.
- No Harmful Content. Subscriber represents and warrants to Continental that neither Subscriber nor its users will knowingly transmit via the Service any content containing any program, routine or device designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.
- Damaged or Lost Hardware. Except as set forth herein, Subscriber is responsible for all costs associated with repair or replacement of Hardware damaged as a result of negligence, abuse, accident, acts of God, acts of third parties, theft, or other loss.
Subscriber Acknowledgement. Subscriber understands and agrees that:
- the Service is an information tool only and is not a substitute for competent management and oversight of Subscriber’s fleet, transportation system, and personnel;
- the Service depends upon data being transmitted over the Internet, Subscriber’s network, GPS satellites, and third-party carrier networks, and that Continental has no control over the functioning of the Internet, Subscriber’s network, GPS satellites, or any carrier’s network; and
- Subscriber alone is responsible for acquiring and maintaining Subscriber’s fleet, network, Internet access, and Subscriber’s entire physical and technological infrastructure.
- Service and Professional Service Fees. Subscriber shall pay to Continental the amount specified in the Subscription Form, Invoice or other Continental document setting forth such fees (the “Service Fees”) and fees for any Additional Professional Services requested by Subscriber. Continental shall notify Subscriber of any changes to Service Fees at least sixty (60) days prior to the expiration of the Initial Term or Renewal Period.
- Invoice and Payment. Continental shall bill the Service Fees on a monthly basis throughout the Term and any Renewal Period. The payment of all invoices shall be due within fifteen (15) days of the invoice date. All fees quoted and payments made hereunder shall be in U.S. Dollars. Payment for Additional Professional Services shall be invoiced upon completion of the work. Payment is due within fifteen (15) days of the invoice date. Payments must be delivered to the address indicated on the invoice, unless otherwise instructed by Continental.
- Late Payments. In the event Subscriber fails to timely pay any Service Fees or fees for Additional Professional Services, Continental reserves the right to demand payment in full via credit card within three (3) business days after the date payment is due. Continental may, in its sole discretion, suspend the Service or terminate this Agreement, effective immediately, if the Service Fees are not received within the three (3) day period set forth in this Section 3. If Subscriber fails to timely pay any Service Fees or fees for Additional Professional Services within ten (10) days after the date payment is due, Subscriber shall be charged a late payment fee in an amount equal to ten percent (10%) of the amount of the delinquent payment. If Continental suspends the Service for non-payment, Subscriber may be charged a fee for reinstatement of the Service. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. Subscriber shall pay Continental’s costs of collecting amounts past due under this Agreement, including reasonable attorneys’ fees.
- Taxes. Subscriber shall be responsible for all sales taxes, use taxes, value added taxes, withholding taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes on Continental’s income. To the extent Continental has the legal obligation to pay or collect taxes for which Subscriber is responsible pursuant to this Section 4.4, the appropriate amount shall be invoiced to and paid by Subscriber.
Warranties and Disclaimer
- General. Continental warrants to Subscriber that (a) it has the right and authority to enter into this Agreement, and (b) it shall perform the Service and its obligations hereunder in a commercially reasonable, professional, and workmanlike manner.
- Hardware Warranty. Continental represents and warrants that the Hardware will be free from material defects in workmanship and materials under normal use for one (1) year after the installation date (“Warranty Period”). If during the Warranty Period, the Hardware does not conform to the foregoing warranty, then upon reasonable notice from Subscriber of such non-conformity, Continental will, at its option, repair defects in the Hardware or replace it with conforming Hardware. This Section 2 sets forth Subscriber’s exclusive remedy for any breach of this warranty.
- Failure to Conform. Continental is not responsible for failure of the Service to conform to any documentation or to provide accurate information with respect to the location, time, status, availability or existence of Subscriber’s vehicle fleet if the Hardware is (i) damaged, blocked, modified, disassembled, vandalized, destroyed, or interfered with; (ii) subjected to extreme heat or cold, flooding, over-voltage, electrical surges, misapplication of electrical power, or caustic chemicals; (iii) improperly installed or maintained by Subscriber or any third party; or (iv) used for a purpose other than as intended by Continental, including but not limited to use in a configuration not recommended by Continental.
- DISCLAIMER OF WARRANTIES. THE SERVICE IS OFFERED ON AN “AS AVAILABLE” BASIS. CONTINENTAL DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE. SECTIONS 1 AND 5.2 IDENTIFY CONTINENTAL’S EXCLUSIVE WARRANTIES FOR THE SERVICE AND HARDWARE. CONTINENTAL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM TRADE USAGE OR COURSE OF DEALING.
Limitation of Liability
- GENERAL. IN NO EVENT WILL CONTINENTAL OR ANY OF ITS REPRESENTATIVES, OFFICERS, DIRECTORS, MANAGERS, MEMBERS OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, OR FOR ANY LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTIONS, REGARDLESS OF WHETHER CONTINENTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Aggregate Liability. In no event shall Continental’s aggregate liability for all claims under this agreement, whether arising in contract, tort or any other legal theory exceed an amount equal to the fees paid by Subscriber in the twelve (12) month period preceding the act giving rise to the claim for damages.
- Ownership. All right, title, and interest, including all intellectual property rights in the Service and Hardware and any associated hardware and software of Continental or its licensors (including but not limited to the look and feel, designs, algorithms, databases structures, methodologies, and know-how associated with the Service), and any updates, upgrades, improvements, customizations, enhancements, or modifications thereof, or in any ideas, know-how, and programs developed by Continental or its licensors during the Term shall remain the property of Continental or its licensors. All right, title, and interest in any content communicated to Continental via the Service shall remain the sole property of the Subscriber.
- Trademarks. Subscriber consents to use of Subscriber’s name and/or logo a) on Continental’s website in order to direct end-users to the public-facing aspects of the Service, and b) to create a Subscriber-specific public-facing website hosted by Continental or a third-party vendor where users may access the Service.
- Aggregate Data. Continental may from time to time analyze and compile data related to Subscriber’s use of the Service for the sole purpose of creating aggregate data that does not contain any information that identifies Subscriber or its users (the “Aggregate Data”). Continental may use the Aggregate Data for Continental’s own purposes, without restriction, combine the Aggregate Data with data from other sources to create aggregate statistical data, and may provide the data to its third-party vendors.
- General. “Confidential Information” means any non-public information or data (including without limitation any formula, pattern, method, business plan, compilation, program, device, technique, or process) whether in written, electronic, or other tangible form, or provided orally or visually, that is disclosed by or on behalf of one party (a “Disclosing Party”) to the other party (a “Receiving Party”), whether owned by the Disclosing Party or a third party, pursuant to this Agreement. Confidential Information of Subscriber includes but is not limited to Subscriber’s financial and business information. Confidential Information of Continental includes but is not limited to the terms of this Agreement; the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, and screen displays associated with the Hardware and the Service; and Continental’s pricing, sales, proposals, implementation, and training materials, and procedures. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a Receiving Party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the Receiving Party as shown by its written records.
- Nondisclosure. A Receiving Party (a) shall hold the Disclosing Party’s Confidential Information in strict confidence; and (b) except as expressly authorized by this Agreement, shall not, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information. Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information of the Disclosing Party to third parties who require such information in order to perform services on behalf of the Receiving Party and as required by law or court order. In the event Confidential Information must be disclosed pursuant to law or court order, the Receiving Party shall use its best efforts to inform the Disclosing Party before any such disclosure. The Subscriber shall limit access to the password protected portions of the Service and any Hardware to Subscriber’s employees who have a legitimate need to access the Service and Hardware.
- Injunctive Relief. Each party acknowledges and agrees that any violation of this Section 8 may cause irreparable injury for which there would be no adequate remedy at law. The Disclosing Party shall be entitled to preliminary and other injunctive relief against the Receiving Party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that Disclosing Party may have at law or in equity.
- Return. Upon termination or expiration of this Agreement, or upon the request of the Disclosing Party, the Receiving Party will return to the Disclosing Party all the Confidential Information delivered or disclosed to the Receiving Party, together with all copies made by the Receiving Party.
Term and Termination
- Term. This Agreement shall become effective on the date Subscriber accepts this Agreement and shall be effective for one year (the “Initial Term”), subject to the terms of Section 2.2 of this Agreement. The Agreement will automatically renew after the Initial Term for additional successive one-year periods thereafter (each a “Renewal Period,” and collectively with the Initial Term, the “Term”) unless Subscriber provides written notice to Continental at least ninety (90) days before the end of the Initial Term or Renewal Period, as applicable, of its intent to terminate the Agreement at the conclusion of the then-current Term.
Termination. This Agreement may be terminated as follows:
- If Subscriber fails to make any payment due hereunder within ten (10) days after receiving written notice from Continental that such payment is delinquent, Continental may terminate this Agreement on written notice to Subscriber at any time following the end of such ten (10) day period, effective as of the date set forth in the notice.
- If either party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate this Agreement at any time following the end of such thirty (30) day period, effective as of the date set forth in the written notice of termination.
- This Agreement shall terminate immediately upon notice if either party becomes insolvent or makes an assignment for the benefit of creditors.
- Continental may terminate this Agreement at any time for any reason by providing written notice of termination to the Subscriber.
- Effect of Termination or Expiration. Upon termination or expiration of this Agreement for any reason, the Subscriber’s right to access and use the Service automatically terminates. Termination of this Agreement does not relieve Subscriber of its obligation to pay monies due Continental.
- Survival. Sections 4, 3, 5.4, 6, 7.1, 8, 9, 10, and 12 shall survive the termination or expiration of this Agreement for any reason.
Subscriber agrees to defend, indemnify and hold harmless Continental and its parent and subsidiaries and their respective officers, directors, employees and agents, from and against claims, liabilities, damages and expenses, including reasonable attorneys’ and other professionals’ fees, arising out of or relating to (i) Subscriber’s possession or use of the Hardware, (ii) Subscriber’s breach of this Agreement, (iii) personal injury or property damage caused by the negligence or willful misconduct of Subscriber or Subscriber’s employees or agents, or (iv) Subscriber’s infringement of any third party’s intellectual property rights. Subscriber agrees agree to provide the foregoing indemnification as a material condition and inducement for Continental to enter into this Agreement.
- Promotion Rights
No public statements concerning the existence or terms of this Agreement will be made or released to any media except with the prior approval of both parties or as required by law. With Subscriber’s prior approval, which shall not be unreasonably withheld, Continental may publicize its relationship with Subscriber for marketing and promotion purposes, which may include issuing a press release, mentioning the relationship on the Continental website (in each case by disclosing Subscriber’s name, general information and/or a link to Subscriber’s website), or list Subscriber as a user of the Service.
- Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other party; provided, however, that either party may assign this Agreement without such consent in connection with a merger, corporate reorganization or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section 1 shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their successors and permitted assigns.
- Waiver and Amendment. This Agreement may only be modified by a writing signed by both parties. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy. No waiver by either party of any right or remedy whether under this Agreement or otherwise shall be effective unless in writing.
- Governing Law. This Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the United States and the State of North Carolina, USA, without regard to its conflict of laws provisions.
- Relationship of Parties. The parties are independent contractors. Neither party shall be deemed an employee, agent, partner, or legal representative of the other for any purpose and neither shall have any tight, power, or authority to create any obligation or responsibility on behalf of the other.
- Severability. If any term, provision or condition of this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Force Majeure. Neither party will be liable or responsible for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected or its subcontractors or suppliers, including but not limited to war, sabotage, insurrection, epidemics, earthquakes, terrorism, riot or other act of civil disobedience, strikes or other labor shortages, accident, fire, explosion, flood, hurricane, severe weather or act of God. The obligations of the party suffering from the force majeure event will be suspended for the duration of the force majeure.
- Headings and References. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
- Notices. Any notice permitted or required under this Agreement may be delivered in person, by registered or certified mail (postage prepaid), or by recognized overnight delivery service to the party’s address identified below (or other address designated by a party by written notice that conforms to this section). Notice will be deemed effective upon personal delivery, on the day after deposit for overnight delivery, or three days after deposit by registered or certified mail.
if to Continental, to:
6755 Snowdrift Road
Allentown, PA 18106
Attention: Alexis Capelle
if to Subscriber, to the address provided during registration of the Hardware.
- Entire Agreement. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, proposal, warranties and representations.