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THESE TERMS AND CONDITIONS ("TERMS") GOVERN YOUR ACCESS TO AND USE OF FLEETMATICS SERVICES INCLUDING ANY CONTENT THEREIN (THE "SERVICES"). BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO THESE TERMS AND CONDITIONS. THE TERM "AGREEMENT" AS USED HEREIN SHALL MEAN THESE TERMS. IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND THE MASTER AGREEMENT, IF ANY, EXECUTED BETWEEN FLEETMATICS AND THE ORGANIZATION WHICH YOU REPRESENT, THE MASTER AGREEMENT WILL CONTROL. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective as of the date of your acceptance of this Agreement. Reference to "we", "our" and "us" in its related variations shall mean the Fleetmatics entity or its affiliates, as applicable, from whom you receive the Services, otherwise from Fleetmatics Ireland Limited.
1. AUTHORIZED USE. By accepting these Terms, you agree to these Terms on behalf of yourself, your organization and any entity that you represent or on behalf of which you use the Services. You further agree that you have the authority to bind that organization to these Terms and that you are an authorized user on behalf such organization. The Services may only be used for your internal management, reference and informational purposes (collectively, the "Authorized Use"). You may only access the Services and print limited copies of the materials from the Services for the Authorized Use. You agree not to (a) make the Services or any data or content therein available to, or use any Service or data for the benefit of, anyone other than you or the organization for whom you are an authorized user, (b) sell, resell, license, sublicense, distribute, rent or lease the Services or any data or content therein, or use or include the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or data or content contained therein, (f) attempt to gain unauthorized access to the Service, any data or content therein, or any systems or networks related thereto, (g) copy or download data or content except as permitted herein or in an order form executed under the master agreement, (h) frame or mirror any part of any Services, other than framing on your own intranets or otherwise as permitted in the documentation within the Services, (i) access the Services, or any content or data therein, to build a competitive product or service, or (j) reverse engineer the Services (except to the extent such restriction is permitted by law). You agree to remove promptly on our request any content or data from the Services that a third party licensor requires us to remove or which may violate third party rights or applicable laws, and you agree that we may disable the Services if you fail to do so.
2. RESPONSIBLE USE AND PASSWORDS. You are responsible for the accuracy, quality and legality of your data, including the data which of third parties which you add to the Services, and the means by which you acquired such data. You agree to use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify us promptly of any such unauthorized access or use. You may view, download, print and/or retain a copy of reports or other content from the Services for your own internal purposes. You agree to use the Services only in accordance with the Agreement and applicable laws and government regulations. You agree not to give or make available your username or password or other means to access your account to any unauthorized individuals. You remain responsible for all access to the Services via your username and password, even if not authorized by you. If you believe that your password or other means to access your account has been lost or stolen or that an unauthorized person has or may attempt to use the Services, you must immediately notify us at USAsupport@fleetmatics.com.
3. TRIAL USE AND BETA SERVICES. If you are using the Services (or accessing certain content herein) on a trial basis pursuant to a pilot or other license agreement or other trial basis authorized by us, you may use the Services (or such content) solely for purposes of evaluating its suitability. Your trial use is subject to all other terms and conditions of this Agreement, including, but not limited to, the Authorized Use and restrictions. At the conclusion of the trial period, you shall cease all use of the Services (or accessing the trial content). From time to time, we may invite you to try pre-lease versions of our Services (the "Pre-release"). You may accept or decline any such trial in your sole discretion. Pre-releases will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or similar term. Pre-releases are for evaluation purposes and not for production use, are not considered "Services" under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise agreed in writing between you and us, any Pre-release trial period will expire upon the earlier of one year from the trial start date or the date the Pre-release becomes generally available. We may discontinue Pre-releases at any time in our sole discretion and may elect, in our sole discretion, not to make the Pre-releases, or any changes or features therein, generally available or part of the Services. We will have no liability for any harm or damage arising out of or in connection with a Pre-release.
4. PROPRIETARY RIGHTS AND LICENSES. All rights, title and interest in and to the Services, including any content therein and all trademarks, logos, patent rights and all other intellectual property rights, belong to us and our licensors. You agree that, subject to the limited rights expressly granted in this Agreement, we on behalf of ourselves and our third party licensors reserve all rights, title and interest in and to the Services, including all intellectual property rights. The trademarks, service marks, trade names, and logos, including, but not limited to, page headers, custom graphics, button icons, and scripts (collectively, the "Trademarks") used and displayed on the Service are registered and unregistered trademarks, service marks and/or trade dress of us and our licensors, and you many not copy, imitate or use the Trademarks, in whole or in part, for any purpose. No rights are granted to you hereunder other than as expressly set forth in this Agreement.
You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or any users relating to the operation of the Services. Comments or feedback that you submit to us about, through or in connection with the Services shall become our property and by sending us such feedback, you agree to a no-charge assignment to us of all right, title and interest in copyrights and other intellectual property rights on a worldwide basis in and to such feedback, and whether or not such assignments are effective, you agree that are free to use any ideas, concepts, know-how or techniques that you send us for any purpose on an unrestricted basis at no charge.
5. THIRD PARTY CONTENT. As part of the Services, we may provide hypertext links to sites on the Internet that are operated by unrelated third parties and contain certain third party content, such as without limitation maps, routing instructions, driving directions, billing programs, etc., ("Third Party Content"). By using any such external hypertext link, you acknowledge that you will be leaving our site. You are responsible for independently confirming the accuracy of all Third Party Content, such as without limitation driving directions or the existence of designated routes. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, the use of or reliance on any Third Party Content.
6. INDEMNIFICATION. You agree to defend, indemnify and hold harmless us and our licensors, and any of our respective officers, directors, employees, subcontractors, agents, successors, assigns, affiliates or subsidiaries, 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 Services; (ii) your violation of this Agreement or the master agreement; (iii) incomplete or inaccurate information or data provided by you; (iv) unauthorized use of any content or materials available on or through the Services; or (v) any content you upload or post to the Services. We reserve the right, at our discretion, to assume or participate, at your and your organization's expense, in the investigation, settlement and defense of any action or claim to which it is entitled to indemnification. No claim shall be settled without our prior written consent unless such settlement includes a complete release of us, including our affiliates, from all liability and does not contain or contemplate any payment by us or contain any injunctive or other equitable relief binding upon us.
7. WARRANTY DISCLAIMER. THE SERVICE, INCLUDING ALL CONTENT THEREIN, IS PROVIDED "AS IS," "WITH ALL FAULTS" AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND DATA ACCURACY. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE OPERATION OF THE SERVICES, THE USE, VALIDITY, ACCURACY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF THE MATERIALS IN THE SERVICES, OR ANY OTHER WEBSITE LINKED TO THE SERVICES. WE DO NOT WARRANT THAT THE SERVICES WILL BE FREE FROM INFECTION, VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL WE, OUR LICENSORS, AND ANY OF OURS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES OR SUBSIDIARIES, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, DAMAGES RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION ARISING OUT OF RELATING TO THE USE OR INABILITY TO USE THE ERVICES, ANY WEBSITES LINKED TO THE ONLINE SERVICES, THE CONTENT OR OTHER INFORMATION CONTAINED IN THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. WHILE YOUR USE OF THE ONLINE SERVICE IS AT YOUR OWN RISK, IF WE SHOULD HAVE ANY LIABILITY FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE ONLINE SERVICE, OUR TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS SHALL NOT EXCEED THE LESSER OF $1000 (OR THE EQUIVALENT AMOUNT IN THE LOCAL CURRENCY, IN DIFFERENT) OR THE AMOUNT OF FEES PAID TO US BY YOUR SUBSCRIBING ORGANIZATION FOR THE APPLICABLE PORTION OF THE SERVICES IN THE PRECEDING TWELVE (12) MONTHS. YOU ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION, WE AND OUR LICENSORS WOULD NOT PROVIDE THE ONLINE SERVICES OR THE MATERIALS ACCESSIBLE THEREIN.
9. MISCELLANEOUS.
9.1. Compliance with Laws. You agree to comply with all applicable statutes, regulations, and legal obligations, including those relating to the privacy of individuals, regarding your use of the Services and information obtained from the Services. You understand and agree that we may, in our sole discretion, report suspected violations to the appropriate authorities or parties. The Services a may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You shall not permit users to access or use the Services in any E.U.- or U.S.-embargoed country or in violation of any applicable export law or regulation.
9.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify our Legal Department at legal@fleetmatics.com.
9.3 Severability and Waiver. If any provision(s) of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by us.
9.4 Assignment. This Agreement may be assigned in whole or in part by us at any time. This Agreement may not be assigned in any manner by you without our prior written permission.
9.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, notwithstanding any conflict of laws provisions. You (i) irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts in Massachusetts for any litigation or dispute arising out of or relating to this Agreement, (ii) agree not to commence any litigation arising out of or relating to this Agreement except in the Massachusetts courts, (iii) agree not to plead or claim that such litigation brought therein has been brought in an inconvenient forum, and (iv) agree the Massachusetts represent the exclusive jurisdiction for all disputes relating to this Agreement. Notwithstanding the foregoing, in the event that the mater agreement pursuant to which you are an authorized user specifies that a different state's or country's law shall govern such agreement, such state's or country's law shall be deemed to govern this Agreement and each party consents to the exclusive jurisdiction and venue of the courts of such state or country.