PLEASE READ THE FLEETMODE (iOS Version) TERMS.The FleetMode application and service is licensed to You for Your use. You acknowledge when the FleetMode Application and Service is active that it cannot block or prevent You from accessing Your device at any time including while driving. You may receive some or all incoming calls when the application is active. By downloading, installing or using this Application You indicate You have read and accept the FleetMode (iOS Version) terms and consent to the use of Your information in accordance with these terms. Data and messaging rates apply to the use of this app and service. IMPORTANT NOTE: FleetMode uses GPS to determine the speed of the vehicle in which you are traveling. Continued use of GPS running in the background can dramatically decrease device battery life.
End User License Agreement for FleetMode (iOS version)
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE “ACCEPT” BUTTON OR DOWNLOAD, INSTALL OR USE THE APPLICATION.
THIS APPLICATION IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 13. UNLESS AND UNTIL THEIR PARENT OR GUARDIAN CONSENTS TO THESE TERMS, INCLUDING WITHOUT LIMITATION THE USE AND DISCLOSURE OF PERSONAL LOCATION INFORMATION AND OTHER PERSONAL INFORMATION AS DISCLOSED HEREIN. IF YOU ARE AN AT&T WIRELESS ACCOUNT HOLDER AND YOUR DEVICE(S) ARE USED BY YOUR CHILD WHO IS UNDER 13 YEARS OLD, BY DOWNLOADING THE APPLICATION TO SAID DEVICE(S) YOU ARE CONSENTING TO THESE TERMS ON BEHALF OF YOUR CHILD. IF YOU DO NOT WISH TO CONSENT TO THESE ON BEHALF OF YOUR CHILD, DO NOT DOWNLOAD THE APPLICATION TO YOUR CHILD’S DEVICE. IF YOU ARE UNDER 13 YEARS OLD, YOU MAY NOT USE THIS APPLICATION OR PROVIDE AT&T WITH ANY PERSONALLY IDENTIFIABLE INFORMATION UNLESS AND UNTIL YOUR PARENT CONSENTS TO THESE TERMS AS INDICATED ABOVE. IF YOU ARE 13 OR OLDER BUT NOT OF LEGAL AGE TO ENTER INTO A CONTRACT, YOU SHOULD REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND THESE TERMS AND CONDITIONS.
BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU AFFIRM THAT YOU ARE EITHER OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, OR ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS LICENSE AND IN THE RELATED AGREEMENTS, AND TO ABIDE BY AND COMPLY WITH THIS LICENSE AND THE RELATED AGREEMENTS.
THIS LICENSE IS SUBJECT TO THE ARBITRATION PROVISION INCLUDED IN SECTION 10 OF THIS LICENSE.
Please read this end user software license agreement (“License”) carefully before clicking the “Accept” button or downloading or using FleetMode (iOS version) (“Application”). As used herein, “Application” and “Application and Services” includes, without limitation, any services specific to the Application (excluding, however, Your applicable wireless service plan), software code, scripts, interfaces, graphics, displays, text, images, artwork, music or video clips, documentation and other components or content and any updates, modifications or enhancements to these items accompanying the Application or this License. These terms are an agreement between You and FleetMode, LLC. (“FLEETMODE”) and its affiliates (individually and collectively, “FLEETMODE”). “You” and “Your” in this License refer to you, an individual, and/or to the company on whose behalf you accept this License.
Your purchase and/or use of the Application also may be governed by terms and conditions required by (i) any applicable third party content and service providers, (ii) the manufacturer and other providers of Your Device and its hardware and software components, including its operating system, (iii) the online store or other applicable distributor through which You obtain the Application (iv) Your applicable wireless service agreement, (v) any applicable open source or third party software license, and (vi) the terms or conditions governing Your personal accounts for web content services You access through the Application ((i) through (vi) including without limitation those terms listed in the “Third Party Terms” section of this License, collectively being referred to as the “Related Agreements”). No Related Agreement, however, shall have the effect of limiting, encumbering or otherwise restricting FLEETMODE’s rights and remedies or Your obligations under this License, or waiving any restrictions on Your rights to use the Application under this License.
This License shall not have the effect of limiting, encumbering or otherwise restricting FLEETMODE’s rights and remedies or Your obligations under any Related Agreement between You and FLEETMODE, or waiving any restrictions on Your rights under any Related Agreement between You and FLEETMODE. You understand and agree that even if You are not the account-holder for Your Device, Your purchase and use of the Application is governed by the terms and conditions in Your applicable wireless service agreement for your Device.
If FLEETMODE makes any updates or upgrades to the Application available to You, such updates or upgrades shall be subject to the terms and conditions of this License unless the Application is expressly provided to You under other, or additional terms and conditions, in which case, those other, or additional terms and conditions (which may include the payment of additional fees), shall apply.
1. THE APPLICATION:
The Application includes settings that can assist with limiting certain mobile device functionality while driving. The Application is compatible with iPhone 4s device or newer running on the iOS 8 or higher operating system. While engaged, the Application will silence audible alerts or notifications, and may stop the device from vibrating, from incoming SMS and multimedia messages and messages from third party message services (e.g. iMessage or WhatsApp.)
1.1 Auto-Mode. The Application will turn on automatically once it determines Your Device is in a vehicle that is moving at 15 MPH. The Application will turn off automatically when the vehicle has been moving at less than 15 MPH after at least 2-3 consecutive minutes. The Application also contains a manual On/Off button that can override Auto-Mode for the length of the drive.
1.1.1 Auto-Mode, when FleetMode is paired the SmartDot, the Application will turn on automatically once the vehicle starts moving and will also prevent use of the keyboard while the vehicle is in motion.
1.2 Auto-Reply FleetMode can send a customizable Auto-Reply in response to an incoming Short Messaging Service (“SMS”) and Multimedia Messaging Service (“MMS”) when Auto-Reply is On and the device is in a vehicle moving more than 15 MPH. An auto-reply will only be sent once to someone if they send more than one text message during the drive. Auto-Reply does not respond to phone calls. Auto-Reply is not compatible with iMessage or third party message services and therefore Auto-Reply does not respond to incoming messages from over the top applications and/or third party messaging services including iMessages. If Your phone setting has iMessage turned On, You can turn iMessage Off on your iPhone and any other Apple device you use to access iMessages to facilitate Auto-Reply to respond to those messages. Auto-Reply can only be used by postpaid AT&T subscribers. Note: AT&T does not guarantee delivery of Auto-Reply messages.
1.2.1 To complete the setup of the Auto-Reply feature, the device needs to be on the AT&T cellular network. If on Wi-Fi, You will be prompted to turn Wi-Fi Off to complete the set up process. Auto-Reply defaults to On when you install the FleetMode app and can be modified by the user via the Application settings. If You install the FleetMode app, You will be set up with an AT&T Messages cloud inbox.
1.3 Alerts. The Application also includes a feature that can provide alerts (“Manager Alerts”) to notify another person of changes that have occurred with the Application settings on Your Device (for example, GPS, Bluetooth or FleetMode disabled). Available alerts are Fleet Manager where they can be enabled and disabled. Manager Alerts sent to an AT&T customer will come from the sender (446) 296-35.
1.4 Other Limitations. The Application does not support Auto-Reply to incoming calls, cannot silence audible alerts or notifications for incoming calls, or route such calls to voicemail. The Application also cannot prevent the sending of outgoing SMS messages. Please note, this Application cannot block or prevent You from accessing Your Device at any time including while driving.
1.5 When engaged, the Application can provide access to Speed Dial for up to five numbers plus 911. Data rates consistent with Your Wireless Customer Agreement and applicable data plan apply to your use of FleetMode.
1.6 CONSENT TO USE LOCATION INFORMATION: This Application accesses and uses Your personally identifiable location information (“Your Location Information”) in order to determine your vehicle’s speed for purposes of enabling and disabling the Application, providing the Manager Portal with vehicle location on a tracking map for accident reporting if necessary and for emergency alerting. By using this Application, You agree that FLEETMODE may collect and use Your Location Information for such purpose. FLEETMODE may also aggregate and use location information for other purposes, including, without limitation, to report usage, or to maintain and improve the Application. This notice will serve as Your sole notice that the Application may collect Your Location Information, and You may not receive any reminders or further notice.
1.8 IMPORTANT NOTICE REGARDING 911 CAPABILITIES Your Device has the capability to place wireless 911 calls.
How to Place a Voice Call to 911 When FleetMode is Enabled:
- Tap the phone icon at the bottom of the screen, tap Call 911 on the next screen.
- Tap Call 911 and then yes on the next screen to confirm that you want to dial 911; the call will automatically be dialed.
2. LICENSE GRANT & USE RESTRICTIONS.
2.1 License Grant. Subject to the restrictions set forth in Section 2.2, FLEETMODE grants You a personal, revocable, non-exclusive, non-transferable, limited right to install and use one copy of the Application on a single device owned and controlled by You (“Device”), and to access and use the Application on such Device solely for Your personal use, strictly in accordance with the terms and conditions of this License, the Related Agreements, and all applicable local, national, and international laws and regulations. You represent, warrant and agree that You are using the Application solely for Your own personal use and not for redistribution or transfer of any kind.
2.2 Restrictions on Use. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application, even for research purposes; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of FLEETMODE or its collaborators, suppliers or licensors; (e) use the Application in a manner that derives revenue directly from such use, or use the Application for any other purpose for which it is not designed or intended; (f) install, use or permit the Application to exist on more than one Device at a time or on any other mobile device or computer; (g) distribute the Application to multiple Devices; (h) make the Application available over a network or other environment permitting access or use by multiple Devices or users at the same time; (i) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by FLEETMODE; (j) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; (k) use any proprietary information or interfaces of FLEETMODE or other intellectual property of FLEETMODE in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application; (l) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Application or the Device or (m) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Application. You agree to abide by the rules and policies established from time to time by FLEETMODE. Such rules and policies may include, for example, required or automated updates, modifications, and/or reinstallations of the Application and obtaining available patches to address security, interoperability or performance issues. These obligations survive termination of this License.
3. INTELLECTUAL PROPERTY RIGHTS.
3.1 Rights to Application. You acknowledge and agree that the Application, any copies thereof (including without limitation any copy that You download, install, or use on Your Device), and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of FLEETMODE or its collaborators, licensors, or suppliers. Furthermore, You acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of FLEETMODE and its collaborators, licensors and suppliers. Title to the Application shall remain with FLEETMODE. FLEETMODE and its collaborators, licensors, and suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use of or access to, disable access to, or require the return of the Application (or any copy thereof) at any time without notice and will have no liability for doing so. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by FLEETMODE. These obligations survive termination of this License.
3.2 FLEETMODE Marks You acknowledge and agree that the following company names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from FLEETMODE: “FLEETMODE” and “FleetMode” (the “FLEETMODE Marks”). You are not authorized to use the FLEETMODE Marks in any advertising, publicity or in any other commercial manner without the prior written consent of FLEETMODE, which may be withheld for any or no reason. These obligations survive termination of this License.
3.3 Third-Party and/or Open Source Software. The Application may utilize or include third party software that is subject to third part and/or open source license terms (“Third Party Software”). You acknowledge and agree that Your right to use such Third Party Software as part of the Application is subject to and governed by the terms and conditions of any applicable third party and open source license, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (collectively, the “Third Party Terms”). In the event of a conflict between the terms of this License and the Third Party Terms, the Third Party Terms shall control.
4. NO RESPONSIBILITY FOR THIRD-PARTY CONTENT & SERVICES.
4.1 General. You acknowledge that the Application may permit access to products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content collaborators, marketing agents, vendors and other third parties (“Third Party Content and Services”).
4.2 Disclaimer. You acknowledge that FLEETMODE does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites accessed through the Application). Furthermore, Your access to and use of the Third Party Content and Services is at Your sole discretion and risk, and FLEETMODE shall have no liability to You arising out of or in connection with Your access to and use of the Third Party Content and Services. Third parties may collection information about You and Your Device if You choose to use Third Party Content and Services. FLEETMODE and its collaborators, suppliers, and licensors are not responsible for third parties’ data collection practices. FLEETMODE encourages You to review the third parties’ privacy policies.
4.3 Third-Party Terms of Service. You acknowledge and agree that Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party using the Application are governed by and require Your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. You assume all risks arising out of or resulting from Your transaction of business over the Internet and with any third party, and You agree that FLEETMODE and its collaborators, suppliers, and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, You acknowledge and agree that this License does not grant You any license to (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein. You agree that You will not use Third Party Content or Services in a manner that would infringe or violate the rights of any other party, and that FLEETMODE and its collaborators, suppliers, and licensors are not in any way responsible for any such use by You.
4.4 Endorsements. You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by FLEETMODE of such Third Party Content and Services. FLEETMODE reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Application, although FLEETMODE has no obligation to restrict or deny access even if requested by You.
4.5 Inaccurate or Inappropriate Materials. You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter (i) that are incomplete or inaccurate; (ii) that You or others may deem offensive, indecent, or objectionable; (iii) which may or may not be identified as having explicit language, and (iv) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, You agree to use the Third Party Content and Services at Your sole risk and that FLEETMODE and its collaborators, suppliers, and licensors shall have no liability to You for information, material or subject matter that is found to be incomplete, inaccurate, offensive, indecent, or objectionable.
5. USER-SUBMITTED CONTENT.
5.1 The Application may contain features that allow You to submit, post or display content through the Application. You may not use or allow others to use the Application, directly or indirectly through Your Device or wireless number, nor upload, distribute, transmit, communicate, link to, public or access any data, information or material through, using or otherwise in connection with the Application, that (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; or (c) infringes any copyright, trademark or other intellectual property right, or any proprietary or personal rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. This means that You, and not FLEETMODE or its collaborators, suppliers, or licensors, are entirely responsible for all content that You provide via the Application. FLEETMODE reserves the right to filter, edit, or control the user-submitted content posted via the Application and does not guarantee the accuracy, integrity or quality of such content. Under no circumstances will FLEETMODE or its collaborators, suppliers, or licensors be liable in any way for any user-submitted content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, transmitted or otherwise made available via the Application.
5.2 If You provide content through the Application (“User Submission”), You grant FLEETMODE a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable and transferable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display Your User Submission (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed and to exercise the same rights with respect to such works without compensation or attribution to You. You also hereby waive any moral rights in Your User Submission. FLEETMODE is under no obligation to post or use any User Submission You may provide and FLEETMODE may remove Your User Submission at any time in its sole discretion. You agree that FLEETMODE is not under any obligation of confidentiality, express or implied, with respect to Your User Submission. You represent and warrant that You own or otherwise control all necessary rights, consents and permissions to Your User Submission necessary to submit such material and to grant FLEETMODE all of the license rights granted herein.
6. TERM & TERMINATION.
This License shall be effective until terminated. FLEETMODE may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by FLEETMODE. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application. FLEETMODE may, without notice to You, disable the Application. FLEETMODE will not be liable to You or any third party for compensation, indemnity, or damages of any sort as a result of terminating this License in accordance with its terms, and termination of this License will be without prejudice to any other right or remedy FLEETMODE may have, now or in the future. These obligations survive termination of this License.
7. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE APPLICATION AND SERVICES IS AT YOUR SOLE RISK. THE APPLICATION AND SERVICES AND ALL PRODUCTS AND APPLICATION AND SERVICES DELIVERED TO YOU THROUGH THE APPLICATION AND SERVICES ARE (EXCEPT AS EXPRESSLY STATED BY FLEETMODE) PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE AND BELOW EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. FLEETMODE AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD PARTY CONTENT AND SERVICES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE OF THE PARTIES, OR THE NATURE OR CONTEXT OF THIS LICENSE, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, FLEETMODE AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FLEETMODE OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT FLEETMODE AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION. YOU ACKNOWLEDGE THAT THE APPLICATION IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE PERFORMANCE OF, USE OR MISUSE OF, FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY, OR ENVIRONMENTAL DAMAGE. FLEETMODE AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE APPLICATION WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT FLEETMODE AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THIS SECTION 7 SHALL SURVIVE TERMINATION OF THIS LICENSE. NOTWITHSTANDING AND WITHOUT WAIVING THE FOREGOING, THE TERMS AND CONDITIONS OF THE RELATED AGREEMENTS MAY PROVIDE LIMITED REMEDIES TO YOU.
8. LIMITATION OF LIABILITY.
SHALL FLEETMODE, , ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE APP AND BOOK SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE APPLICATION AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, AVAILABILITY OF THE APPLICATION OR SERVICE, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLICATION AND SERVICES, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, FLEETMODE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
FLEETMODE SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE APPLICATION AND SERVICES, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND FLEETMODE HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
FLEETMODE DOES NOT REPRESENT OR GUARANTEE THAT THE APPLICATION AND SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND FLEETMODE DISCLAIMS ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY APPLICATION AND PRODUCTS PURCHASED OR ACQUIRED FROM THE APPLICATION AND SERVICES.
FLEETMODE’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (i) THE INITIAL PURCHASE PRICE PAID BY YOU FOR THE APPLICATION, (ii) THE AGGREGATE AMOUNT YOU PAID TO FLEETMODE FOR THE APPLICATION DURING THE ONE MONTH PRECEDING THE DATE THAT THE CLAIM ARISES, OR (iii) TWO DOLLARS ($2.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS SECTION 8 SHALLSURVIVE TERMINATION OF THIS LICENSE.
9. WAIVER & INDEMNITY.
BY USING THE APPLICATION AND SERVICES, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD FLEETMODE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE APPLICATION AND SERVICES, OR ANY ACTION TAKEN BY FLEETMODE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM FLEETMODE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE APPLICATION AND SERVICES, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF FLEETMODE’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
10. DISPUTE RESOLUTION BY BINDING ARBITRATION, PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling our customer service department at 1-407-428-1703. In the unlikely event that FLEETMODE’s customer service department is unable to resolve a complaint You may have to Your satisfaction (or if FLEETMODE has not been able to resolve a dispute it has with You after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this License will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, FLEETMODE will pay all costs of the arbitration. Moreover, in arbitration You are entitled to recover attorneys’ fees from FLEETMODE to at least the same extent as You would be in court. In addition, under certain circumstances (as explained below), FLEETMODE will pay You more than the amount of the arbitrator’s award and will pay Your attorney (if any) twice his or her reasonable attorney’s fees if the arbitrator awards You an amount that is greater than what FLEETMODE has offered You to settle the dispute.
10.1 Arbitration Agreement.
10.1.1 FLEETMODE and You agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: • claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; • claims that arose before this License or any prior agreement (including, but not limited to, claims relating to advertising); • claims that are currently the subject of purported class action litigation in which You are not a member of a certified class; and • claims that may arise after the termination of this License. For purposes of this Section 10.1 only, references to “FLEETMODE,” “You,” “Your” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of this Application, or of services or devices under this License or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude You from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on Your behalf. You agree that, by entering into this License, You and FLEETMODE are each waiving the right to a trial by jury or to participate in a class action. This License evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this License.
10.1.2 A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to FLEETMODE should be addressed to: Office of Dispute Resolution, FLEETMODE, 131 Waterman Ave, Mount Dora, FL 32757 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If FLEETMODE and You do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or FLEETMODE may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by FLEETMODE or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or FLEETMODE is entitled.
10.1.3 After FLEETMODE receives notice at the Notice Address that You have commenced arbitration, it will promptly reimburse You for Your payment of the filing fee, unless Your claim is for greater than $75,000. (The filing fee currently is $200 but is subject to change by the arbitration provider. If You are unable to pay this fee, FLEETMODE will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this License, and will be administered by the AAA. The AAA Rules are available online at http://www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this License. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless FLEETMODE and You agree otherwise, any arbitration hearings will take place in Lake County, Florida. If Your claim is for $10,000 or less, we agree that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, FLEETMODE will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, You agree to reimburse FLEETMODE for all monies previously disbursed by it that are otherwise Your obligation to pay under the AAA Rules. In addition, if You initiate an arbitration in which You seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
10.1.4 If, after finding in Your favor in any respect on the merits of Your claim, the arbitrator issues You an award that is greater than the value of FLEETMODE’s last written settlement offer made before an arbitrator was selected, then FLEETMODE will: • pay You the amount of the award or $10,000 (“the alternative payment”), whichever is greater; and • pay Your attorney, if any, twice the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrues for investigating, preparing, and pursuing Your claim in arbitration (“the attorney premium”). If FLEETMODE did not make a written offer to settle the dispute before an arbitrator was selected, You and Your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards You any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrators ruling on the merits.
10.1.5 The right to attorneys’ fees and expenses discussed in paragraph 10.1.4 supplements any right to attorneys’ fees and expenses You may have under applicable law. Thus, if You would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding You that amount. However, You may not recover duplicative awards of attorneys’ fees or costs. Although under some laws FLEETMODE may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, FLEETMODE agrees that it will not seek such an award.
10.1.6 The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND FLEETMODE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and FLEETMODE agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
10.1.7 Notwithstanding any provision in this License to the contrary, we agree that if FLEETMODE makes any future change to this arbitration provision (other than a change to the Notice Address) while this License is in effect, You may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, You are agreeing that You will arbitrate any dispute between us in accordance with the language of this provision.
10.2 Puerto Rico Licenses.
For Puerto Rico Licensees, references to “small claims court” in Section 10 should be understood to mean the Puerto Rico Telecommunications Regulatory Board.
11. MISCELLANEOUS. The following provisions survive termination of this License:
11.1 Governing Law, Limitation on Actions. This License shall be deemed to take place in the State of Florida and shall be governed by and construed in accordance with the laws of the State of Florida, excluding its conflicts of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. To the maximum extent permitted by applicable law, You and FLEETMODE agree that any cause of action arising out of or relating to the Application or Your use of the Application must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. This Section 11.1 is not intended to and does not alter any provisions of Your applicable wireless service agreement.
11.2 Contact Information. In the event that You have a question, complaint or claim regarding Your use of the Application, please call FLEETMODE Customer Service by dialing 1-407-428-1703.
11.3 Severability. If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
11.4 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
11.5 Jurisdictional Issues, Export Control. This Application is intended for use within the United States of America. FLEETMODE makes no representation that this Application is appropriate or available for use in other locations. If You choose to access or use the Application from other locations, You do so on Your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Application from jurisdictions in which the Application, in whole or in part, is illegal or penalized is prohibited. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. You also agree that You will not use the Application for any purposes prohibited by United States law.
11.6 U.S. Government Restricted Rights. The Application was developed at private expense and is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS and in similar clauses in the NASA FAR Supplement, and their successors, and all other Federal laws and regulations that protect Licensor rights in privately developed commercial software.
11.7 Performance or Benchmark Testing. You may not disclose the results of any benchmark test using the Application to any third party without FLEETMODE’s prior written approval.
11.8 Modification or Amendment. FLEETMODE may modify or amend the terms of this License at any time, with or without notice to You, by posting a copy of the modified or amended License available through the Application. You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended License is made available through the Application.
11.9 Survival. Any provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination.
11.10 Third-Party Beneficiaries. Except as explicitly provided in this License or in the Related Agreements, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.
11.11 No Transfer by You. You may not rent, lease, lend, sublicense, assign or transfer the Application, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect. These obligations survive termination of this License. FLEETMODE may assign this License without restriction.
11.12 Copyright Complaints. FLEETMODE respects the intellectual property rights of others. If You believe that Your work has been copied and has been posted, stored or transmitted by or through the Application in a way that constitutes copyright infringement, please submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing FLEETMODE’s Copyright Agent the following written information: • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; • A description of the copyrighted work that You claim has been infringed upon; • A specific description of where the material that You claim is infringing is located on the Sites; • Your address, telephone number, and e-mail address; • A statement by You that You have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; • A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf.
11.13 Entire Agreement. This License including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
Third Party Terms. The below Third Party Terms are incorporated herein and made part of this License: Apple.
APPLE: Additional provisions and Usage Rules required by Apple, Inc. (“Apple”) may be found at http://www.apple.com/legal/itunes/appstore/us/terms.html. If Your Device is manufactured by Apple or if You obtain the downloadable Application through iTunes, You and FLEETMODE acknowledge and agree that Apple and its subsidiaries are third party beneficiaries to this License, and that, upon Your acceptance of the terms and conditions of this License, Apple will have the right to enforce this License against You in its capacity as a third party beneficiary to the License. APPLE SHALL HAVE NO RESPONSIBILITY FOR ANY CLAIMS MADE BY YOU OR ANY THIRD PARTY RELATED TO THE APPLICATION OR YOUR USE OR POSSESSION OF THE APPLICATION, INCLUDING, BUT NOT LIMITED TO (i) PRODUCT LIABILITY CLAIMS, (ii) ANY CLAIM THAT THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, (iii) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION, OR (iv) ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE APPLICATION TO CONFORM TO ANY WARRANTY, EXPRESS OR IMPLIED. IF YOU HAVE PAID ANY FEE TO APPLE FOR USE OF THE APPLICATION, IN THE EVENT OF ANY FAILURE OF THE APPLICATION TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE WILL, AS YOUR SOLE AND EXCLUSIVE REMEDY, REFUND TO YOU THE PURCHASE PRICE PAID, IF ANY, FOR THE APPLICATION. APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION.