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TERMS OF USE

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Xemplar Solutions Suite Terms of Use

This Terms of Use (“Agreement”) is a binding agreement between the end user (“you”, “your” or “End User”) of the software application and website (as defined herein) and Xemplar Insights LLC (“Company”). This Agreement governs your use of the Company’s Mobile Device Software branded as Xemplar Auto, Xemplar Fleet or Xemplar Drive (“Mobile Device Software”). The Mobile Device Software is licensed, not sold, to you.

 

By downloading/installing or using the application, you (a) acknowledge that you have read and understand this agreement; and (b) accept this agreement and agree that you are legally bound by its terms. If you do not agree to these terms, do not download, install or use the application and delete it from your mobile device.

License Grant and Restrictions

Company grants you a personal, limited, terminable, non-exclusive, non-transferable license to:

  1. download, install, and use the Mobile Device Software on your mobile device strictly in accordance with the Mobile Device Software’s documentation; and
  2. access and use on such mobile device the Services made available in or otherwise accessible through the Mobile Device Software, strictly in accordance with this Agreement.

You shall not:

  1. copy the Mobile Device Software;
  2. modify, translate, adapt or otherwise create derivative works or improvements, of the Mobile Device Software;
  3. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Mobile Device Software, the Hosted Software or any part thereof;
  4. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Mobile Device Software;
  5. rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Mobile Device Software or any features or functionality of the Mobile Device Software, to any third party for any reason, including by making the Mobile Device Software available on a network where it is capable of being accessed by more than one device at any time;
  6. remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile Device Software; or,
  7. upload or introduce any virus or malware to the Hosted Software.

You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your End User Data.

You acknowledge and consent that when you download, install or use the Mobile Device Software, Company may use automatic means (including, without limitation, cookies, web beacons, and GPS transmissions) to collect information about your Mobile Device and about your use of the Mobile Device Software, including without limitation geospatial data, driving data, location, rate of speed, acceleration/deceleration, Mobile Device usage, etc. (which are included in the definition of End User Data, below). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Mobile Device Software or certain of its features or functionality, and the Mobile Device Software may provide you with opportunities to share information about yourself with others.

All information Company collects through or in connection with this Mobile Device Software and your use thereof is subject to Company’s privacy policy, which is located at //www.xemplarinsights.com/xemplar-privacy-policy.aspx  and which may be updated from time to time without notice (“Privacy Policy”). By downloading, installing, using, and providing information to or through this Mobile Device Software, you consent to all use and actions taken by us with respect to your information pursuant to the Privacy Policy. You also consent to any transfer, sale, assignment, conveyance or license by Company of the End User Data.

All ownership rights in and to the Mobile Device Software shall remain exclusively with Company and its authorized partners/vendors, as applicable. Access to the Services is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.

  1. End User Data. In connection with the Mobile Device Software, Company and its authorized partners/vendors may collect and maintain End User Data provided by you, including that collected by automatic means as set out in Paragraph 2, above. Company shall maintain all personal identifiable aspects of all End User Data as confidential pursuant to the Privacy Policy. All third parties authorized by Company which may have access to the End User Data shall be under obligations of confidentiality to maintain the End User Data as confidential pursuant to the Privacy Policy. You agree to and do hereby grant to Company the irrevocable, perpetual, transferrable right to use, disclose, commercialize, assign, convey, sell, lease, license or transfer any De-identified End User Data.
  2. Company Data. All Company Data is the sole property of Company. Company has the right to use, collect, store, create, aggregate, mine, analyze, modify, commercialize, assign, convey, sell, lease, license or transfer Company Data in any form, for any purpose and in any manner. Any Company Data provided to you shall be subject to limitations and restrictions imposed by Company’s Privacy Policy and other commercial agreements to which Company may be a party.

The Mobile Device Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.

  1. The term of use commences when you download/install the Mobile Device Software or acknowledge your acceptance, and will continue in effect until terminated by you or Company as set forth in herein.
  2. You may terminate this Agreement by deleting the Mobile Device Software and all copies thereof from your Mobile Device.
  3. Company may terminate this Agreement at any time without notice if it ceases to support the Mobile Device Software, which Company may do in its sole discretion. In addition, Company may immediately terminate this Agreement with or without any notice if you violate any of the terms and conditions of this Agreement.
  4. Upon termination:
    1. all rights granted to you under this Agreement will also terminate;
    2. you must cease all use of the Mobile Device Software and delete all copies of the Mobile Device Software from your Mobile Device; and
    3. your access to your account and your End User Data will be terminated.
  5. Termination will not limit any of Company’s rights or remedies at law or in equity.
  1. The application is provided to you “as is, as available” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, Company, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the application, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, Company provides no warranty or undertaking, and makes no representation of any kind that the application will meet your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
  2. Without limiting the foregoing, neither Company nor any Company provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Company application, or the information, content, the Company software, and materials or products included thereon; (ii) that the Company application will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Company application; or (iv) that the Company application, its servers, the content, or e-mails sent from or on behalf of Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
  3. You agree that Company assumes no responsibility for any content you submit, upload, create or make available through the mobile device software.
  4. Company is not liable for the acts or omissions of its contractors, vendors and service providers.

To the fullest extent permitted by applicable law, in no event will Company or its affiliates, or any of its or their respective licensors or service providers, have any liability arising from or related to your use of or inability to use the application or the content and services for:

  1. Personal injury, property damage, lost profits, loss of employment, cost of substitute goods or services, loss or corruption data, loss of goodwill, business interruption, computer failure or malfunction or any other consequential, incidental, indirect, exemplary, special or punitive damages;
  2. Direct damages in amounts that in the aggregate exceed the greater of (i) the amount actually paid by you for the application and (ii) one hundred dollars (USD). The foregoing limitations will apply whether such damages arise out of breach of contract, tort (including negligence) or otherwise and regardless of whether such damages were foreseeable or Company was advised of the possibility of such damages. Some jurisdictions do not allow certain limitations of liability so some or all of the above limitations of liability may not apply to you.

 

Company does not guarantee the continuous, uninterrupted or secure access to the Company application, Company services, or any related services. The operation of the Company application may be interfered with by numerous factors outside the control of Company.

 

Under no circumstances shall Company be liable for any damages that result from the use of or inability to use the Company application, including but not limited to reliance by you on any information obtained from the Company application or that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of God, communications failure, theft, destruction, or unauthorized access to Company records, programs, or services. User hereby acknowledges that this paragraph shall apply to all content, data, and information submitted through the mobile device software and you to the Company services available through the mobile device software.

Any cause of action or claim you may have arising out of or relating to this agreement or the application must be commenced within 3 (three) months after the cause of action accrues, otherwise, such cause of action or claim is permanently barred