Terms of Service

TransCom Solutions, Inc. Terms of Service and Customer Agreement

Updated April __, 2024

This Terms of Service and Customer Agreement (“Agreement”) is a legal contract between our Customers (“you,” “your,” or “Customer”) and TransCom Solutions, Inc. (“we,” “our,” or “TransCom”) that governs your purchase and use (“Account”) of TransCom’s websites and fleetkeep software solution and related products (together, “fleetkeep Products”) for fleet asset management and related services (“Services”). 

By agreeing to use fleetkeep Products, you agree and represent that you (i) have read and accept the terms of this Agreement on your behalf or on behalf of the company or other legal entity that you represent, and (ii) have authority to bind and enter into this Agreement.  If you do not have authority to bind the company that you represent or if you do not agree to the terms of this Agreement, you must not accept the terms of this Agreement and do not use the Services.  Any usage of fleetkeep Products indicates consent and agreement with this Agreement in its entirety.

This Agreement is effective as of the first date you click “I agree” (or similar box) or affiliated product or use or access fleetkeep Products, whichever is earlier (“Effective Date”).  This Agreement does not have to be signed to be effective. 

  1. General
  1. Access and Use. Subject to these terms and conditions, you may access and use the Services of fleetkeep Products during the applicable Term for your own business purposes and as allowed by the terms of this Agreement. 
  1. Content. Your data, content, code, video, images, or other materials of any type that you (including any of your End Users) submit, use, input, or upload to fleetkeep Products is your “Content.”  “End User” means any individual or entity who you, your employees, or an affiliated or third-party entity, including your contractors, agents, or other end users, permits or invites to use the fleetkeep Products. You retain all right, title, and interest in and to your Content.
  1. Support. During the Term, we will provide support for the fleetkeep Products in accordance with this Agreement, and we will implement reasonable and appropriate measures designed to help you secure your Content against accidental or unlawful loss, access, or disclosure. 
  1. Notice of Changes to the Services.  The fleetkeep Products are on-line, subscription-based products, and we may make changes to the fleetkeep Products in order to provide improved customer experience.  We may also change or discontinue any fleetkeep Products or any portion or feature of the Services from time to time for any reason at any time without liability to you. We will provide at least one (1) months’ notice before discontinuing material functionality of Services that we make generally available to customers and that you are using.  We are not obligated to provide such notice if the discontinuation is necessary to (a) address an emergency or risk of harm to the Services or TransCom, (b) respond to claims, litigation, or loss of license rights related to third party intellectual property rights, or (c) comply with law; however, should any of the preceding occur, Transcom will provide you with as much prior notice as is reasonably practicable under the circumstances.
  1. Ownership. Except as expressly set out in this Agreement, neither party grants the other any rights or licenses to its intellectual property under this Agreement.  As between the parties, Customer owns all intellectual property and other rights in Content you provide to or use with the fleetkeep Products.  TransCom and its licensors retain all intellectual property and other rights in the fleetkeep Products, any support services deliverables and related source code, TransCom technology, templates, and formats and dashboards, including any modifications or improvements. 
  • Your Responsibilities
  • Your Account.
  • You will comply with the terms of this Agreement and all laws, rules, and regulations applicable to your use of the Services.  To access the Services, you must have a current fleetkeep Products account associated with a valid email address and a valid form of payment.
  • You are responsible for the security of your account. Accounts can have multiple users but each user is required to use an unique email.  You are not to share your log-in credentials with any third party.  See §2.6.
  • Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your Account, regardless of whether the activities are authorized by you or undertaken by End Users, and (b) we and our affiliates are not responsible for unauthorized access to your Account. 
  • Fees and Payment. 
  • Fees and payment terms were specified when you agreed to use fleetkeep Products in your order with TransCom.  You understand and agree that the monthly fee is variable based on your active assets and equipment at the start of each month and that such monthly fees are subject to change monthly based on your use of fleetkeep Products.
  • You agree to make timely payments of Fees to use fleetkeep Products pursuant to fleetkeep Product’s then-current prices. Unless a separate agreement is reached, you authorize fleetkeep Products to initiate monthly payments using your valid form of payment stored in your Account. 
  • We reserve the right to increase the monthly fees annually by the greater of five percent (5%) per year or the applicable Consumer Price Index for all Urban Consumers, published by the Bureau of Labor Statistics, United States Department of Labor, or successor index if the CPI is terminated or unavailable for any reason.   
  • Any payment disputes must be submitted in good faith before the payment due date.  If we determine that any billing inaccuracies are attributable to us, we will issue a credit to you. 
  • Any late payments may bear interest at 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full.  You will be responsible for all reasonable expenses of TransCom (including attorneys’ fees) incurred by us in collecting such delinquent amounts.  In the event of late payment, we may suspend your Services, Content, or access to fleetkeep Products.  
  • All fees and expenses are non-refundable, except as otherwise provided in this Agreement. 
  •  Your Content.
  • You are solely responsible for your Content and the consequences of submitting and using it with the fleetkeep Products. You will ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate this Agreement or any applicable law. 
  • You must not (and must not permit anyone else to) upload to the fleetkeep Products any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act.  The system is not HIPPA compliance because it is not anticipated that you will store HIPPA-protected information on fleetkeep Products.  If you need to load such information, you cannot upload, submit, or enter it until the parties have entered into a Business Associate Agreement, which we will provide to you upon request.  We will not be responsible for any liability related to your loading of HIPPA-protected information on fleetkeep Products.
  • Subject to these terms, and solely to the extent necessary, you grant us a worldwide license to access, use, process, copy, distribute, perform, export, and display your Content. You represent and warrant that you have obtained all necessary rights, releases, and permissions to submit your Content to the fleetkeep Products, and that your Content will not violate any laws, contractual agreements, or third-party intellectual property, privacy, publicity, or other rights. 
  • We have no obligation to monitor your Content. However, if we deem necessary based on our reasonable belief that you have violated this Agreement, we may remove your Content from the fleetkeep Products or suspend your access to the fleetkeep Products.  We will use reasonable efforts to provide you with notice prior to removal or suspension to the extent practicable; however, you agree that we will have no liability for removing or deleting your Content or suspending your access to fleetkeep Products under this provision.  
  • Indemnity. You will defend, indemnify, and hold harmless TransCom (and our affiliates, officers, directors, agents, and employees) from and against any and all claims, costs, damages, losses, liabilities, and expenses, including attorney’s fees and costs, resulting from any claim arising from or related to (i) your or your End Users’ use, or claims or disputes related brought by your End Users related to use, of fleetkeep Products or Services or (ii) your or your End Users’ breach of the terms of the Agreement or applicable law in using fleetkeep Products. We will have the exclusive right to select our counsel and direct the defense when you are indemnifying TransCom under this provision.
  • Your Security and Backup. You are responsible for properly configuring and using the fleetkeep Products and Services.  You are responsible for taking appropriate action to secure, protect, and backup your Account and your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect your Content from unauthorized access and routinely archiving your Content.
  • Log-In Credentials. fleetkeep Products log-in credentials are for your internal use only, and you will use commercially reasonable efforts to prevent and terminate any unauthorized use, or access to, the Services.  Do not disclose your Log-In Credentials to any unauthorized person, except that you may disclose your credentials to your agents and subcontractors performing work on your behalf.  Accounts can have multiple users but each user is required to use an unique email.  You shall not sell, transfer, or sublicense them to any other entity or person.  You will be deemed to have taken any action that you permit, assist, or facilitate any person or entity to take related to this Agreement, your Content, or use of the Services. 
  • Third Party Products. To the extent available, you may choose to use fleetkeep Products with third-party platforms, apps, add-ons, services, or products (“Third-Party Products”).  Third-Party Products might include offerings made available from TransCom. Use of such Third-Party Products with the fleetkeep Products may require access to Content by the third-party provider, which, TransCom will permit on Customer’s behalf if Customer has enabled that Third-Party Product.  Customer’s use of Third-Party Products is subject to the relevant third-party provider’s terms of use, not this Agreement.  TransCom does not control and has no liability for Third-Party Products. 
  • Compliance and Restrictions. 
  • You are responsible for End Users’ actions and use of your Content and the Services, and for their compliance with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to your Content and the Services by such End User.  You are responsible for any damages resulting from your End Users’ failure to comply with the Agreement or applicable law.
  • Certain fleetkeep Products have various user onboarding flows and allow users to initiate functionality. You are responsible for understanding the settings, functionality, and controls of fleetkeep Products and for controlling your and your End Users’ use of fleetkeep Products, including whom you allow or invite to become an End User. 
  • You agree and understand that you are solely responsible for the accuracy and completeness of your Content and that the performance and functionality of fleetkeep Products use and rely on your Content.  This includes notifications from fleetkeep Products.  TransCom is not responsible or liable for the performance of fleetkeep Products if your Content is incorrect, incomplete, or inaccurate.  
  • fleetkeep Products are not intended for, and should not be used by, anyone under the age of majority in your jurisdiction.  You are responsible for ensuring that all End Users are above the age of majority.
  • Except as otherwise expressly permitted in the Agreement, you shall not: (a) reproduce, modify, adapt or create derivative works of fleetkeep Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to fleetkeep Products to a third party; (c) use fleetkeep Products for the benefit of any third party; (d) incorporate fleetkeep Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in fleetkeep Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to fleetkeep Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in fleetkeep Products; (h) use any part of, idea, concept, or image of fleetkeep Products for competitive analysis or to build competitive products; or (i) encourage or assist any third party to do any of the foregoing.  TransCom’s remedies for breaches of this provision are not subject to the Limitations of Liability contained in Section 5.
  • Term and Termination
  • Term. fleetkeep Products are offered on a monthly subscription basis for a monthly fee (“Term”). Unless either party cancels your subscription prior to expiration of the current Term, your subscription will automatically renew for another monthly Term.  The Term will commence on the Effective Date and will remain in effect until the date the Agreement is terminated under this Section (“Termination Date”).
  • Suspension. In addition to the other provisions related to suspension, we have a right to immediately suspend, disable, or limit access to or use of fleetkeep Products or the Services if we reasonably believe suspension is needed to protect fleetkeep Products, our infrastructure supporting fleetkeep Products, or any other customer of fleetkeep Products.  We will lift the suspension when the circumstances giving rise to the Suspension have been resolved. 
  • Non-Renewal.  You shall provide any notice of non-renewal through the means we designate, which may include within your Account or by contacting our support team. Cancelling your Subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable fleetkeep Products continuing to be offered and will be charged at the then-current rates.
  • Termination for Cause. 
  • Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 
  • We may terminate this Agreement immediately upon notice to you if (a) your breach is not capable of being remedied; (b) if our relationship with a third-party partner who provides software or other technology we use to provide the fleetkeep Products expires, terminates, or requires us to change the way we provide the software or other technology as part of the Services; or (c) in order to comply with law or requests of governmental entities.
  • Termination for Convenience. You may choose to stop using the fleetkeep Products and terminate this Agreement for any reason upon thirty (30) days’ notice to us in your Account or in writing to us.  Upon such termination, any fees for the current Term that are outstanding will become immediately due and payable. 
  • Effects of Termination. 
  • No later than the Termination Date, your Account will be closed.  
  • Upon the Termination Date, you must cease using all fleetkeep Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request.
  • Up to and during the 30 days following the Termination Date, you will have access to retrieve your Content if you have paid all amounts due under the Agreement. After that date, we will remove your Content from the system. After 30 days post-Termination Date, you will be required to pay all outstanding amounts and applicable storage costs in order to obtain a copy of your Content, if available and at our sole discretion. We have no obligation to retain your Content more than thirty (30) days after Termination.
  • If we terminate the Agreement in accordance with Section 3.3 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Term. If you terminate this Agreement in accordance with 3.4 (Termination for Convenience), we will refund you any prepaid fees covering the remainder of the then-current Term. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the Termination Date.  
  • For Services, if any, after Termination Date, the terms of this Agreement will apply, and you will pay the applicable fees.

3.6 Remedies. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

  • Warranties and Disclaimer 

4.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

4.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, malware, or similar harmful materials into the fleetkeep Products (the “Performance Warranty”).  We are not responsible for harmful materials submitted by you or End Users.

4.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Term. In this case, you will receive a refund of any fees you have pre-paid for use of the fleetkeep Product for the terminated portion of the applicable Term.  The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services, or equipment, or (iii) to any products provided for no charge.  Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 4.

4.4  WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, ALL FLEETKEEP PRODUCTS, SUPPORT, AND ADDITIONAL SERVICES BY TRANSCOM ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THIS AGREEMENT, WE DO NOT WARRANT THAT YOUR USE OF THE FLEETKEEP PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR CONTENT FOR ACCURACY, OR THAT WE WILL PRESERVE OR MAINTAIN YOUR CONTENT WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE FLEETKEEPPRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR CONTENT OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR CONTENT LOST, ALTERED, INTERCEPTED, OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR CONTENT WILL ALWAYS BE SECURE, OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

  • Limitation of Liability

5.1  Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE CONTENT, LOST PROFITS, FAILURE OF SECURITY MECHANISMS ON OUR PART, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 

5.2  Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR THE FLEETKEEP PRODUCTS AND ADDITIONAL SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.  THE AGGREGATE LIABLITY INCLUDES ANY UNAUTHORIZED DISCLOSURE OF CONTENT CAUSED BY A BREACH OF TRANSCOM’S SECURITY PROGRAM.

5.3   Excluded Claims. “ExcludedClaims” means: (a) Customer’s breach of Sections 2, and (b) either party’s breach of Section 9 (Confidentiality) but excluding claims relating to Content.

5.3  Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 5 apply regardless of the form of action, whether in contract, tort (including our negligence and gross negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose.

6.     Indemnification by TransCom

6.1  IP Indemnification.  TransCom must: (a) defend Customer from and against any third-party claim to the extent alleging that the fleetkeep Products, when used by Customer as authorized by this Agreement, infringe any intellectual property right of a third party (an “Infringement Claim”), and (b) indemnify and hold harmless Customer against any damages, fines or costs finally awarded by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed in settlement by TransCom resulting from an Infringement Claim.

6.2  Procedures. TransCom’s obligations in this Section 6 are subject to Customer providing: (a) sufficient notice of the Infringement Claim so as to not prejudice TransCom’s defense of the Infringement Claim, (b) the exclusive right to control and direct the investigation, defense, and settlement of the Infringement Claim, and (c) all reasonably requested cooperation, at TransCom’s expense for reasonable out-of-pocket expenses.  Customer may participate in the defense of an Infringement Claim with its own counsel at its own expense.

6.3  Settlement.  Customer may not settle an Infringement Claim without TransCom’s prior written consent. TransCom may not settle an Infringement Claim without Customer’s prior written consent if settlement would require Customer to admit fault or take or refrain from taking any action (other than relating to use of the fleetkeep Products).

6.4  Mitigation.  In response to an actual or potential Infringement Claim, TransCom may, at its option: (a) procure rights for Customer’s continued use of the fleetkeep Products, (b) replace or modify the alleged infringing portion of the fleetkeep Products without reducing the overall functionality of the fleetkeep Products, or (c) terminate the affected Term and refund to Customer any pre-paid, unused fees for the terminated portion of the Term.

6.5  Exceptions.  TransCom’s obligations in this Section do not apply to the extent an Infringement Claim arises from: (a) Customer’s modification or unauthorized use of the fleetkeep Products, (b) use of the fleetkeep Products in combination with items not provided by TransCom (including Third-Party Products), (c) any unsupported release of the fleetkeep Products, (d) Third-Party Products, or (e) your Content.

6.6  Exclusive Remedy.  This Section sets out Customer’s exclusive remedy and TransCom’s entire liability regarding infringement of third-party intellectual property rights.

  • Dispute Resolution 
  • Informal Resolution. In the event of any controversy or claim arising out of or relating to the Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under the Agreement.  All negotiations pursuant to this Section 6 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
  • Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the applicable laws of the State of Texas, without giving effect to the principles of that State relating to conflicts of laws.  You irrevocably agree that any legal action, suit, or proceeding arising out of or related to the Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State district court in Lufkin, Angelina County, Texas, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Lufkin, Angelina County, Texas, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party. In any action or proceeding, we will be entitled to recover our reasonable costs and attorneys’ fees if we are the prevailing party or we defeat any claim against us.
  • Injunctive Relief; Enforcement. Nothing in the Agreement will prevent TransCom from seeking injunctive relief with respect to your breach of this Agreement, violation of intellectual property rights, confidentiality obligations, or enforcement or recognition of any award or order in any appropriate jurisdiction.
  • Data Privacy and Security
  • Content. TransCom will not access your Content except as necessary to maintain or provide Services, or as necessary to comply with the law or a binding order of a governmental body.  We will only use your Account information in accordance with TransCom’s Privacy Policy[HB1] , which is incorporated hereto as though set forth in full, with which you consent by your usage of fleetkeep Products.,
  • Security Program. We shall endeavor to maintain and handle all your Content in accordance with industry standard privacy and security practices and measures adequate to preserve its confidentiality and security as required by applicable laws and regulations.  TransCom has implemented and will maintain an information security program that uses appropriate physical, technical, and organizational measures designed to protect Content from unauthorized access, destruction, use, modification, or disclosure. 
  • Confidential Information 
  •  “Confidential Information” means information disclosed by one party to the other under or in connection with this Agreement that: (a) is designated by the disclosing party as proprietary or confidential, or (b) should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure.  TransCom’s Confidential Information includes any source code and technical or performance information about the fleetkeep Products.  Customer’s Confidential Information includes your Content.
  • Obligations.  Unless expressly permitted by the disclosing party in writing, the receiving party must: (a) hold the disclosing party’s Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, and (b) only use such Confidential Information to fulfill its obligations and exercise its rights in this Agreement.  The receiving party may disclose such Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for TransCom, its affiliates, third party providers, and partners) provided the receiving party remains responsible for their compliance with this Section and they are bound to confidentiality obligations no less protective than this Section.
  1. Exclusions.  These confidentiality obligations do not apply to information that the receiving party can demonstrate: (a) is or becomes publicly available through no fault of the receiving party, (b) it knew or possessed prior to receipt under this Agreement without breach of confidentiality obligations, (c) it received from a third party without breach of confidentiality obligations, or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates, at the disclosing party’s cost, in any reasonable effort to obtain confidential treatment.
  • Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy.  Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or anticipated breach of this Section.
  1. General Provisions 
  1. Survival. The following provisions will survive any termination or expiration of the Agreement: Sections 2 (Your Responsibilities), 3 (Term and Termination), 4 (Warranties and Disclaimer), 5 (Limitation of Liability), 6 (Indemnification), 7 (Dispute Resolution), 9 (Confidential Information), and 10 (General Provisions).
  1. Changes to the Agreement.  We may modify the terms and conditions of the Agreement from time to time, by posting the modified Terms on our website or giving notice to you.
  1. Notices. Any notice to us under the Agreement must be given in writing to the email address in your Account. We may provide notice to you through your Notification Email Address or in fleetkeep Products.  You agree that any of these communications will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it.
  1. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
  1. Assignment. You may not assign or transfer the Agreement without our prior written consent. As an exception to the foregoing, you may assign the Agreement in its entirety to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under the Agreement. Any attempt by you to transfer or assign the Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under the Agreement (in whole or in part) without your consent. We may also permit our affiliates, agents, partners, and contractors to exercise our rights or perform our obligations under the Agreement, in which case we will remain responsible for their compliance with the Agreement. Subject to the foregoing, the Agreement will inure to the benefit of the parties’ permitted successors and assigns.
  1. Entire Agreement. The Agreement is the entire agreement between you and us relating to the fleetkeep Products and any other subject matter covered by the Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the fleetkeep Products or any other subject matter covered by the Agreement. You disclaim any reliance on any communications or representations regarding the nature, security, quality, or functionality of fleetkeep Products.  No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of the Agreement, and any such document relating to the Agreement will be for administrative purposes only and will have no legal effect.
  1. Waivers; Modifications. No failure or delay by the injured party to the Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder at law or equity.
  1. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of the Agreement is held to be void, invalid, unenforceable, or illegal, the other provisions will continue in full force and effect.
  1. Independent Contractors. The parties are independent contractors. The Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power, or authority to create any duty or obligation of the other party.